Affirmative Action Appeal Is Rejected

The Supreme Court on Monday dealt another setback to affirmative action foes, turning away a white contractor’s challenge to a Denver city ordinance that seeks to ensure more contracts are won by firms owned by minorities and women.

Justice Antonin Scalia, joined by Chief Justice William H. Rehnquist, dissented, saying the court’s action suggests its earlier rulings opposing minority business set-asides have “effectively been overruled.”

In June, the Supreme Court upheld a limited use of affirmative action by colleges and universities, and Scalia said he feared city and county officials may believe they too are free to give special preferences to contractors who are black, Latino or another minority.

The legality of government efforts to help minorities and women win more contracts has been a hard-fought battle in the Supreme Court -- as well as in lower courts -- for more than 20 years.

Liberal civil rights activists said these efforts were needed to combat discrimination against minorities. They charged that large, white-owned firms, having won prime construction contracts, often excluded minority firms from doing some of the subcontracting work.

When cities, states and federal agencies adopted laws that set aside a percentage of work for minorities, conservatives called foul, saying these measures amounted to discrimination against whites.

The conservatives won what they saw as a landmark victory in 1989 when the high court struck down a set-aside ordinance in Richmond, Va. The justices ruled that the Constitution’s equal-treatment standard forbids a city’s discrimination against whites, just the same as it forbids discrimination against minorities. Justice Sandra Day O’Connor’s opinion in the case did not set a simple rule, however. She said cities and counties remained free to combat discrimination in the construction industry.

During the 1990s, city and county officials found themselves on the defensive because of the Richmond decision. When white contractors sued, the governments often were forced to drop programs that reserved some contracts for minority-owned firms.

The Supreme Court refused to intervene when lower courts struck down these programs. In 1995, the high court imposed the same strict standard of nondiscrimination on federal agencies. The Clinton administration adopted a “mend it, don’t end it” strategy to save affirmative action, but its lawyers remained on the defensive.

In Denver, however, city officials tried a different approach. Rather than impose quotas or set-asides, the city demanded that white prime contractors explain whenever a minority firm failed to win subcontracts after submitting the lowest bid.

“They were enforcing a nondiscrimination policy. Otherwise, the city itself would be funding a discriminatory system,” said Eileen Penner, a Washington lawyer who defended Denver’s efforts.

The city also gathered evidence to show the continuing discrimination against minority-owned firms in the construction industry.

In February, this evidence of “ongoing discrimination” persuaded a U.S. court of appeals in Denver to uphold the city’s efforts when a white contractor sued.

The contractor’s lawyers appealed to the Supreme Court, but the justices rejected the case of Concrete Works of Colorado vs. Denver on a 7-2 vote Monday. It takes four votes for an appeal to be accepted.

“We’re disappointed. It’s a setback. I don’t want to sugarcoat it,” said William Perry Pendley, a lawyer for the Mountain States Legal Foundation in Lakewood, Colo., who has been fighting the minority-business program for more than a decade. The appeals court ruling “essentially gutted” the standard set by the Supreme Court in 1989, he said, yet the justices refused to intervene.

Penner said the city’s ordinance survived “because it was not a typical affirmative-action program. It requires a second look when minority contractors are underrepresented,” she said.

In dissent, Scalia faulted his colleagues for allowing the city to pressure white contractors to hire more minority entrepreneurs. The city did not prove “there was pervasive racial discrimination in the Denver construction industry,” Scalia said.

“Denver has been using racial preferences in public contracting for a generation, and there is no indication that this will be anything other than business as usual for the foreseeable future,” Scalia said.

Monday’s decision turning away the appeal is not a ruling, and the high court is free to take up the issue again in a later case.

The outcome in the Denver case also is not likely to have a direct effect on local officials in California, since they are barred from using minority-preference programs under the terms of Proposition 209.