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Administration Backs Affirmative Action Plan

This is a menu of the topics on this page (click on any): August 11, 2001, Saturday    
Administration Backs Affirmative Action Plan     By NEIL A. LEWIS    .

August 11, 2001, Saturday

Administration Backs Affirmative Action Plan


In its first opportunity to take a stance on affirmative action, the Bush administration asked the Supreme Court tonight to uphold a Transportation Department program intended to help minority contractors.

In a brief filed with the court, the Justice Department took the same position as the Clinton administration had in the case, which grew out of a challenge brought years ago by a white-owned construction company in Colorado Springs.

The company, Adarand Constructors, had submitted the low bid for a Transportation Department contract. But the contract was awarded to a minority contractor as part of the department's ''disadvantaged business enterprise'' program. Adarand sued, challenging the policy.

The case has become somewhat muddled since the Supreme Court first ruled on it in 1995. Then, by a 5-to-4 vote, the justices set strict limits on federal affirmative action programs, ruling that such programs must be narrowly tailored to meet a compelling government interest.

The court found that the program appeared flawed and should be reviewed by lower courts to see whether using race as a factor was justified in the award of federal contracts.

Last September, the United States Court of Appeals for the 10th Circuit, in Denver, said the program met the ''strict scrutiny'' test and was constitutional.

Moreover, since the Supreme Court's first ruling, the program has been sharply altered.

Under the revised program, even white-owned small businesses can apply for consideration as a disadvantaged business. In addition, the new version of the program no longer distributes financial bonuses to contractors that use minority-owned companies as subcontractors.

In January, during its last day in office, the Clinton administration argued that the program now met the Supreme Court's objections and that the court should decline to reopen the matter. When the justices voted in March to hear a renewed appeal by Adarand, the Bush administration faced its first significant test on affirmative action.

In its brief filed tonight, the Justice Department said that ''the program is not unconstitutional.''

The 50-page brief cited the program changes that let companies that are economically disadvantaged apply for the same preferences in receiving contracts. The department argued that the program was revised to minimize harm ''to innocent third parties'' and to create ''as level a playing field as possible.''

But the Bush administration brief also appears to accept an underlying tenet of affirmative action: that some businesses have suffered as a result of their minority ownership.

During the presidential campaign, George W. Bush said he opposed quotas but spoke of a need for ''affirmative access,'' a stance that left his position on the issue ambiguous.

The decision today by the Bush administration was sharply criticized by traditional opponents of affirmative action. Linda Chavez, president of the Center for Equal Opportunity, a conservative group that studies affirmative action programs, said she was deeply disappointed.

''It's both bad policy and bad politics,'' said Ms. Chavez, who had been President Bush's choice for secretary of labor before she withdrew her nomination. ''First of all, it's never good politics to betray your principles, and all the people involved in making this policy are people who have opposed racial preferences.''

Attorney General John Ashcroft was one person Ms. Chavez cited. As a senator in 1998, Mr. Ashcroft voted against the program.

But Mindy Tucker, the Justice Department spokeswoman, said that ''this is John Ashcroft doing what he said he would do in the confirmation process,'' noting that Mr. Ashcroft had pledged in his Senate testimony to defend even those laws with which he disagreed.

Georgina Verdugo, the executive director of Americans for a Fair Chance, a coalition of several major civil rights groups that advocates affirmative action, said she was pleasantly surprised by the Bush administration's approach.

''It's the administration's first real statement on affirmative action,'' she said. ''This particular program has been through so many changes it is quite clear that it now meets the Supreme Court's requirements that it be better tailored as a remedy.''

The case is to be heard by the Supreme Court sometime this fall.

Copyright 2001 The New York Times Company

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