Administration Backs Affirmative Action Plan
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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 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.
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.
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