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High Court Dumps Affirmative Action Case

The law: A majority deems the challenge to racial hiring preferences an unsuitable test of the legality of the practice.

November 28, 2001|DAVID G. SAVAGE | TIMES STAFF WRITER

WASHINGTON — The Supreme Court dismissed a major challenge to federal affirmative action Tuesday, belatedly conceding that it had taken up the wrong case to decide whether the government can steer some contracts to minority-owned businesses.

In the court's parlance, Tuesday's decision was a "dig"--"dismissed as improvidently granted"--Chief Justice William H. Rehnquist announced in the case of Adarand Constructors vs. Mineta, 00-730.

In January, the Clinton administration's outgoing solicitor general, Seth Waxman, advised the court to reject an appeal brought by a white contractor from Colorado.

The contractor, Randy Pech, claimed that he and his small company were victims of discrimination because the U.S. Department of Transportation gave preference in bidding to minority-owned companies.

This was true in 1990, when Pech first went to court. He had submitted the low bid to erect guardrails along a stretch of highway but lost out to a "disadvantaged business enterprise" owned by a Latino contractor.

The Clinton administration, as part of its "mend it, don't end it" strategy, changed the program--and, Waxman told the court, officials no longer give preference to minority companies for federal highway projects in Colorado.

But the justices voted in March to take up the appeal nonetheless. The court's conservative justices have been determined to outlaw race-based affirmative action, and the Colorado case appeared to give them the opportunity.

Last month, however, the Bush administration's solicitor general, Theodore B. Olson, appeared before the justices and also argued for dismissal of the case.

"These race-conscious measures are not being enforced" in Colorado, he said, because minority-owned businesses are obtaining a fair share of government contracts. Thus Pech and his company have no complaint, Olson said.

This time, the justices heeded the solicitor general's advice and dropped the case.

"This case presents questions of fundamental national importance calling for final resolution by this court," Rehnquist said Tuesday. "But the importance of an issue should not distort the principles that control the exercise of our jurisdiction." Because Pech could not show that he is now a victim of a race-based preference for his competitors, he had no case, the chief justice said.

Adarand's challenge involved only federal highways. Some states have their own affirmative action programs for road construction. In California, however, the state was forced to abandon such programs after approval of Proposition 209, the 1996 voter initiative prohibiting race-based preferences.

The result of the Supreme Court's action is that the Clinton administration's strategy, aided by the Bush administration's legal advocacy, has preserved, for now, the federal government's scaled-down affirmative action effort.

Congress has continued to insist that at least 10% of its road-building funds go to "disadvantaged business enterprises"--primarily companies owned by African Americans, Latinos, Asian Americans or Native Americans.

Federal officials say that in most areas, these companies are winning their share of contracts without special preferences.

But Tuesday's non-decision left unresolved the question of whether the government can give a preference to minority-owned companies.

Since 1989, the court's conservative majority has frowned upon "race-conscious" government programs. In several 5-4 opinions, it has said the Constitution generally forbids that the government use race as a decision-making factor, even for a laudable purpose.

To their dismay, the conservative justices have failed to find a clean test case that allows them to strike down the use of race-based affirmative action.

The outcome Tuesday left advocates on both sides of the affirmative action dispute puzzled.

"It's kind of a mystery as to why they took this case. This is exactly what Seth Waxman told them," said Washington lawyer John Payton, who filed a brief on behalf of the Lawyers Committee for Civil Rights, the National Assn. for the Advancement of Colored People and other liberal groups.

Roger Clegg, a former Reagan administration lawyer, said he was disappointed by Tuesday's announcement.

"It surprised me. I would have bet on a 5-4 ruling" against the continuing use of race-based affirmative action, said Clegg, who is now at the Center for Equal Opportunity, a public policy center in Washington. "But the issue is not resolved, and as long as the government continues to discriminate based on race and ethnicity, there will be new people coming along to challenge it."

Meanwhile, the court, by a 5-4 vote, shielded private prisons that house federal inmates from being sued for brutal mistreatment by their guards.

Victims of mistreatment can sue the individual guards but not the companies that employ them, Rehnquist said in Correctional Services Corp. vs. Malesko, 00-860. Similarly, he noted, neither can these inmates sue the U.S. Bureau of Prisons.

John Malesko was serving time for stock fraud when he was transferred to a New York prison operated by Correctional Services Corp. Though Malesko had a heart condition, a guard forced him to walk up five flights of stairs.

Malesko had a heart attack and fell and injured himself. He sued the company for $4 million.

In dissent, Justice John Paul Stevens said the decision gives "corporate managers of privately operated custodial institutions . . . clear incentive to adopt cost-saving policies that jeopardize the constitutional rights of tens of thousands of inmates in their custody."

Also, the court listened skeptically to the claim that the practice of grading students' papers in class violates the federal law on the privacy of "educational records."

The justices strongly hinted that they would reverse a lower-court ruling that allowed such a claim to go to trial.

*

Times staff writer Karen Robinson-Jacobs in Los Angeles contributed to this report.

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