Unlikely Backer of Affirmative Action Emerges

The Supreme Court heard a strong defense of federal affirmative action Wednesday, but oddly enough, it came from a conservative Bush administration lawyer who in the past has led legal attacks on race-based admission policies at colleges and law schools.

U.S. Solicitor Gen. Theodore B. Olson said the federal government has responded to past court rulings by narrowing the scope of its affirmative action efforts.

No longer does the government routinely use “race-conscious” means to award public contracts to small firms that are owned by blacks, Latinos and other minorities, he said.

Now it does so only in a handful of states where it appears that white primary contractors have refused to deal with minority-owned firms. Moreover, the government has limited the benefits to only those minority business owners who can show they were a “victim of prejudice or bias” in the past, Olson said.

“I submit this shows the executive branch responding in a highly responsible way,” said Olson, the government’s chief courtroom lawyer.

What was left unsaid was that Olson, a Bush appointee, was seeking to save the Clinton administration’s “mend it, don’t end it” policy on affirmative action.

As a lawyer in private practice, Olson represented white plaintiffs who challenged affirmative action as reverse discrimination. He won a ruling in the Cheryl Hopwood case, which struck down race-based affirmative action in Texas colleges and universities in 1996.

But in his role as solicitor general, Olson has a duty to defend the policies adopted by Congress and the executive branch.

At issue Wednesday was the fate of federal policies that steer billions of dollars in public spending to small businesses that are owned by blacks, Latinos, Asians and Native Americans. In 1998, Congress insisted that at least 10% of its federal highway funds go each year to these so-called “disadvantaged business enterprises.”

But the Supreme Court has frowned upon such affirmative action policies in the past and characterized them as a form of racial discrimination against whites.

Randy Pech, a white road builder from Colorado, has challenged these policies since 1989. He says that he submitted the low bid for erecting guardrails on one stretch of highway, but lost out to a Latino businessman.

Pech wants his company “to compete on an equal footing,” his attorney William Perry Pendley told the justices. Despite Olson’s assurances, “a racial preference program still exists.”

Six years ago, the high court ruled for Pech and his firm, Adarand Constructors, on a 5-4 vote, saying that the government’s use of “racial classifications” is generally forbidden, regardless of who benefits.

“Any official action that treats a person differently because of his race or ethnic origin is inherently suspect,” Justice Sandra Day O’Connor wrote for the majority.

She stopped short of outlawing all race-based affirmative action, however. In the construction industry, she noted, some white primary contractors still refuse to hire minority entrepreneurs. And in those cases, federal funds would be perpetuating a racist and discriminatory system, she said.

The government may act to deal with “the lingering effects of racial discrimination,” O’Connor wrote in 1995.

Ever since, there have been sharply differing views on how to read the original Adarand ruling. Conservatives said it all but ended race-based affirmative action. Liberals said it left the door open for the government to attack the lingering bias against minorities. The Clinton administration narrowed the program in order to save it.

On Wednesday, the justices took up the Adarand case again, presumably to resolve the dispute.

It was not clear the justices will do so, however.

Most of the hourlong argument was devoted to procedural questions.

Olson said the justices should dismiss Adarand’s case because Pech and his firm are no longer being discriminated against.

“These race-conscious measures are not being enforced” in Colorado, he said. And Pech and the company “have not demonstrated they have lost a single contract” since 1995 because of the government’s efforts to boost minority-owned firms.

Pendley disagreed. “The government is playing a shell game,” he said, trying to hide its race-based preferences from the court’s review.

Apparently agreeing, Chief Justice William H. Rehnquist chided the government for “bobbing and weaving” to avoid a clear ruling on the issue.

In recent months, since the lower court ruled against Pech, the Transportation Department has revised its contracting program again, leaving the justices uncertain of how to proceed.

“If all of this is new, what are we supposed to do?” O’Connor asked at one point.

By the hour’s end, O’Connor’s question had gone unanswered, leaving the outcome up in the air.

The justices could vote to dismiss the case of Adarand Constructors vs. Mineta, 00-730, as early as next week, or they could start work on a written ruling.

Meanwhile, the court announced that none of its employees has tested positive for anthrax. About 440 employees were given nasal swabs.

On Monday, the court will not issue its usual orders list disposing of pending appeals. Because the justices and their clerks have been kept out of the court’s building, they are unable to review the appeal briefs in time.