White House Backs Race-Based Program

In the most closely watched affirmative action case in recent years, the Bush administration on Friday defended a federal program that uses race as a factor to create a “level playing field” in doling out billions of dollars in government contracts.

The Justice Department’s position, coming in a case that the U.S. Supreme Court will hear in the fall, marked a departure from President Bush’s past opposition to government racial preferences. Some of Bush’s top legal advisors, including Atty. Gen. John Ashcroft, have spoken out even more strongly in condemning affirmative action.

The administration, in a brief filed late Friday, asked the Supreme Court to uphold a federal program that seeks to set aside a share of government transportation contracts for disadvantaged minorities and women.

Civil rights activists hailed the administration’s position. But conservatives, angered by what they saw as a missed opportunity to repudiate affirmative action, accused Bush of retreating from his campaign pledges so he could avoid alienating minority voters.

The defense of the racial set-aside program, following Bush’s decision Thursday to allow limited stem cell research, was the second time in as many days that the administration has disappointed conservatives on a hot-button issue.

“This administration has given up all pretense of principle,” Larry Klayman, head of a conservative Washington interest group called Judicial Watch, charged in an interview. “Coming on the heels of the stem cell research decision, this decision is going to create a lot of problems for Bush with true conservatives.”

But administration officials rejected charges that they were pandering to minority voters by defending the affirmative action program.

“This is John Ashcroft doing what he said he was going to do during his confirmation process--that is, when there’s a good-faith argument that can be made to defend a federal statute, he’ll make it,” said Justice Department spokeswoman Mindy Tucker.

In the 50-page brief, the Justice Department said the transportation program is narrowly tailored to set aside government contracts for disadvantaged businesspeople who can show they have suffered discrimination.

The program “is not unconstitutional on its face,” Solicitor General Theodore B. Olson told the court.

“It is designed to ensure that aid recipients only employ race-conscious remedies as a last resort. . . . The program thus is designed to avoid bestowing undue benefits on [disadvantaged business enterprises] and to create as level a playing field as constitutionally possible,” Olson wrote.

At issue is a measure reaffirmed by Congress in 1998 that sets aside 10% of the billions of dollars spent each year on highway and transit contracts for “disadvantaged business enterprises.” The law presumes that businesses headed by “black Americans, Hispanic Americans, Native Americans, Asian Pacific Americans and other minorities” are socially and economically disadvantaged.

The Supreme Court agreed in March to hear a challenge to the law from the owner of a Colorado firm called Adarand Constructors Inc., who said he submitted the lowest bid to erect guardrails on a stretch of federal highway but lost the job to a Latino-owned firm. Under an earlier version of the federal program, the government offered a cash bonus of $10,000 to the prime contractor for hiring the minority-owned firm.

This is the second time the high court will look at the Colorado case. In a 1995 decision arising from the same complaint, the court’s conservative majority said racial classifications and set-aside programs are “inherently suspect,” and it raised the bar for their use, saying the government must aim to remedy a specific, provable case of discrimination.

That earlier decision, after a judicial pattern of reining in affirmative action programs deemed overly broad, led to changes in California and elsewhere across the country in how federal transportation contracts are awarded.

But activists on both sides of the issue are now looking to the Supreme Court to resolve lingering questions about when race-based decisions are acceptable in government contracting--and, potentially, in schools, the workplace and other fields.

“This is a case that we’re watching very, very closely,” said Hilary Shelton, a spokesman for the National Assn. for the Advancement of Colored People. “This case will set the tone for the debate in America.”

Civil rights activists applauded the Justice Department’s stance, particularly in light of concerns about whether the Bush administration would seek to end all race-based programs in the face of pressure from conservatives in the Republican Party.

“Defending the program is welcome news for the NAACP. We’re convinced that this program has gone through a tremendous amount of reconfiguring to make it meet the strict scrutiny standard” that was applied by the Supreme Court in 1995, Shelton said.

Marcia Kuntz, legislative director for the Alliance for Justice, a civil rights organization, said the Justice Department’s position was “a pleasant surprise.”

“The solicitor general is doing his job, which is to defend statutes and regulations that are challenged in court,” she said, adding that Olson “is doing what he is paid to do, rather than what the president’s conservative base would have him do.”

Justice Department officials stressed that their defense of race-based contracting is limited to the transportation program before the court and does not necessarily signal a broader support of affirmative action programs in higher education and other areas--cases that are winding their way through lower courts. Indeed, some civil rights supporters said Olson’s repeated reference to racial factors as a “last resort” in the awarding of the transportation contracts might be an attempt to hedge the administration’s position.

Even so, conservatives were bitterly disappointed by the Justice Department’s stance because they said it flies in the face of Bush’s own pledges on the presidential campaign trail, when he spoke out against the use of quotas or racial preferences in hiring and school admissions.

Some of Bush’s top legal advisors have been even more forceful than the president in their condemnation of race-based policies.

Ashcroft, while a senator in 1998, voted against the transportation set-aside program and called it “ridiculous” and “un-American” because it assumes that minorities are disadvantaged. And Olson, a preeminent conservative lawyer, had previously represented a white student who said that she was unfairly denied admission to the University of Texas Law School.

Olson successfully argued before a federal district court in 1996 that the law school’s affirmative action policy was unconstitutional in giving preferential treatment to minorities. After winning that case, Olson declared the decision “a ringing endorsement of the view that racial discrimination is not the way to end racial discrimination.” The U.S. Supreme Court later allowed the lower court ruling to stand.

Linda Chavez, president of the conservative Center for Equal Opportunity and a former civil rights commissioner in the Reagan administration, said in an interview that “what the administration is doing [in the Colorado case] is not consistent with either the positions that Gov. Bush took when he was running for president or that Atty. Gen. Ashcroft took when he was a member of the U.S. Senate. They said they opposed racial preference, and there certainly could be no more egregious form of set-asides than these regulations.”

Chavez said she thinks the administration decided to back affirmative action as a way of reaching out to Latino voters and showing itself to represent “a kinder, gentler Republican Party. . . . The conventional wisdom is that this is a political calculation, and they have decided they just did not want to take this issue on.”

But she said the administration may be mollifying minorities at the expense of hard-core conservatives, and that could hurt Bush and other Republicans at the polling places. “In addition to being appalling policy, I just don’t think this is good politics.”