Compliance January 11, 2001

Full Adarand Affirmative Action Ruling May Fizzle

November 1, 2001 (PLANSPONSOR.com) - Chances that the US Supreme Court will use a long-running Colorado affirmative action dispute to decide the issue's constitutionality appeared to fizzle Wednesday as justices suggested they may dump the case.

Reported by

editors@plansponsor.com

In the third time the high court has considered Adarand Constructors v. Mineta, No. 00-730, justices spent most of the time discussing why the 11-year-old lawsuit challenging minority construction set-asides shouldn’t proceed to a full ruling on the merits.

Besides Chief Justice William Rehnquist and Justice Sandra Day O’Connor, Justices Antonin Scalia, Stephen Breyer, David Souter and Ruth Bader Ginsburg all made comments suggesting they might dismiss. Only Justices Anthony Kennedy and, to a lesser extent, John Paul Stevens seemed prepared to rule.

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Several justices noted that the part of the construction set-aside program originally challenged by Adarand has been found unconstitutional and is no longer operative or part of the case, while another part of the program that remains may not have been actually challenged by Adarand.

For 11 years Adarand, a white-owned Colorado highway construction firm, has challenged a complex and recently modified program created by Congress to increase the number of minority-owned contractors participating in road projects. In 1995, the Court struck down the program.

It offered bonuses to contractors if at least 10% of their subcontracting work went to “disadvantaged business enterprises.” Minority-owned companies were presumed to be disadvantaged.

In September 2000, after the Supreme Court had bounced a second challenge back to the lower courts, the Denver-based 10th Circuit upheld a revised version of the program.

– Fred Schneyer editors@plansponsor.com