Archive for Saturday, August 11, 2001

Administration defends racial preferences

Justice Department brief could disappoint conservative allies of president

August 11, 2001


— The Bush administration on Friday asked the Supreme Court to uphold the use of racial preferences in some government contracting, a position at odds with the president's campaign pledges.

The decision followed a tradition of continuing defenses started by previous administrations. In this instance, the government is defending itself in an 11-year-old case with a white Colorado contractor.

The program being disputed "is designed to ensure that aid recipients only employ race-conscious remedies as a last resort," Solicitor General Theodore Olson told the court.

Olson also said it was devised "to create as level a playing field as constitutionally possible."

If Bush's Justice Department had abandoned the position of the Clinton administration, it would have broken Supreme Court precedent.

Conservative group leaders recognized the dilemma but still hoped the president would stand by his campaign promise to work to end quotas.

"Being in a politically difficult position does not forgive you doing the right thing constitutionally and morally," said Curt Levey, an attorney for the conservative Center for Individual Rights.

Bush campaigned against racial quotas, and Atty. Gen. John Ashcroft has also opposed affirmative action.

A Justice Department official said the filing should not be interpreted as the administration embracing affirmative action, only that the program was not improper. The official said the program did not involve quotas.

"This is John Ashcroft doing what he said he would do during his confirmation hearings," spokeswoman Mindy Tucker said.

"When there is a good-faith argument to be made in defense of a statute, he will make it."

Before Clinton left office in January, his top lawyer filed papers defending the Transportation Department's preferential contracting program as a constitutional way to combat the lingering effects of racial discrimination.

Large government contractors get bonuses for hiring "disadvantaged," or minority-owned, smaller firms as subcontractors.

Colorado Springs-based Adarand Constructors Inc. had submitted a lower bid for guardrail work in the San Juan National Forest in southern Colorado, but lost out to a Hispanic-owned company because of the system.

Adarand sued the government in 1990.

When the dispute went to the Supreme Court the first time, in 1995, justices used it to set strict limits on federal affirmative action programs. The court decided on a 5-4 vote that assistance must be narrowly tailored to meet a compelling government interest.

The Supreme Court is now reviewing Adarand's claim that a revised version of the contracting program still gives minority competitors unfair advantage.

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