New Affirmative Action Issues Expose Split U.S. Supreme Court
Fresh off the divisive University of Michigan cases involving affirmative action in college admissions, a divided U.S. Supreme Court refused last month to consider the constitutionality of a Denver law that gives minority- and female-owned contractors a better chance at winning some contracts.
The city had been sued a decade ago by a company that alleged the law discriminated against White male contractors. However, in refusing to hear the case, the court let stand a ruling that upheld Denver’s program and other race-conscious programs that promote business with minority contractors and vendors.
On one hand the court’s refusal to hear the Denver case might be seen as a complement to the June ruling that allows universities to select students based in part on race, acknowledging the social value of diversity.
On the other, it is a reminder of the tenuousness of that victory for affirmative action supporters.
“It sounds as if we need to be on guard simply because although it seems as if we won one of the Michigan cases, the decision around the country will be varied depending on the jurisdiction,” says Dr. Robert Ethridge, president of the American Association for Affirmative Action.
“We have to proceed as if somebody is going to challenge any decision that we make. I would encourage us to keep pushing forward, but we can not do so carelessly so that one decision will wipe out a lot of gains.”
That fear became clear when Chief Justice William H. Rehnquist and Justice Antonin Scalia objected to the court’s decision not to hear the Denver case. They said the court should turn its focus now on preferences in government contracting, and make clear that programs must be narrowly tailored to address specific past discrimination. Very few laws or government programs have been upheld under that standard.
Writing for himself and Rehnquist, Scalia, whose written objection broke the ordinary silence that surrounds the court’s choices about which cases to hear, said the Denver policy clearly violates the standard set by the Supreme Court and invites speculation that an earlier case limiting affirmative action had been overruled.
Scalia said there must be some evidence that discrimination was so pervasive that any minority business would have suffered. “Absent such evidence of pervasive discrimination, Denver’s seeming limitation of the set-asides to victims of racial discrimination is a sham, and the only function of the preferences is to channel a fixed percentage of city contracting dollars to firms identified by race,” he wrote in dissent. Justices Thomas and Kennedy, who also objected, did not sign on to Scalia’s objection in the case and did not say why.
Denver’s attorneys argued that their program does not impose quotas or set-asides, but does try to help contractors who have been discriminated against. Charles Rothfeld, one of Denver’s attorneys, told justices that there was overwhelming evidence of discrimination in Denver construction and the city program was directed to fix that.
– Associated Press and staff
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