It’s the End of Affirmative Action, Maybe

The affirmative-action case of Adarand Constructors v. Pena, No. 93-1841, set for argument Jan. 17, could be the civil-rights case of the decade — or much ado about very little.

The case pits Adarand Constructors, a white-owned highway-construction firm from Colorado, against the Clinton administration, which is defending a race-conscious highway-funding program that Adarand claims cost it a contract.

But rarely have opposing sides in a case cast the issues in such different terms.

On one side will be William Perry Pendley, president and chief legal officer of the conservative Mountain States Legal Foundation, with an in-your-face argument on behalf of Adarand that the program at issue is race-conscious. As such, he will argue, the program is subject to strict scrutiny, and fails under that standard.

On the other side, in something of a defensive crouch, will be Solicitor General Drew Days III, arguing that the program is not what it appears to be, is not primarily race-conscious, and isn’t much worth fussing over.

The focus of the program, Days insists, is helping "disadvantaged" contractors regardless of race. The fact that minority-owned businesses are automatically regarded as disadvantaged, he says, is nonetheless a "rebuttable presumption" that Adarand never tried to rebut.

Days and other groups — notably, including the NAACP Legal Defense Fund — even go so far as to argue that Adarand does not have standing because the company cannot prove that the program caused it injury.

"The Court could uphold this program and it wouldn’t have much impact," says Stephen Ralston, senior staff attorney at the LDF. "Its not a set-aside program, it’s not like Fullilove." He is referring, of course, to the minority set-aside public-works program challenged and upheld in 1980 in Fullilove v. Klutznick, 448 U.S. 448.

The fact that Days and the amicus groups on his side are trying so hard to portray the contracting program as something less than meets the eye — and less than Fullilove — probably reflects their concern over the Court’s decision to take the case in the first place.

Looming over the civil-rights community is the arithmetic of the Supreme Court’s last affirmative-action ruling, Metro Broadcasting v. FCC, 497 U.S. 547, Justice William Brennan Jr.’s final ruling, decided June 27, 1990. Of the five justices in the majority, only John Paul Stevens remains on the Court.

Dissenters Sandra Day O’Connor, Anthony Kennedy, Antonin Scalia, and William Rehnquist, have been joined on the right by Clarence Thomas at the very least. Other newcomers, David Souter, Ruth Ginsburg, and Stephen Breyer, may or may not all join Stevens on the side of affirmative action, but even if all of them do, they add up to only four.

So when the Court granted cert in Adarand, the unspoken message seemed clear to some. "I doubt this will be the end of affirmative action, but if they were going to uphold Fullilove and Metro Broadcasting, it seems like they would not have taken the case," says Todd Welch, senior attorney at Mountain States. "There has not been another time in history when there has been such a significant shift in ideology on the Court."

That is why, Welch says, the government has undertaken what he calls a "last-gasp effort" to portray the highway program challenged in Adarand as unlike either Fullilove or Metro. Days may be the best person for the job. It was he who argued the Fullilove case on behalf of the Carter administration when he headed the Civil Rights Division of the Justice Department. The effort will be futile, says Welch, because "there is no question this is a race-based or race-conscious program."

Though the program is framed in terms of benefiting disadvantaged businesses, "the government has presented no evidence that any white-owned companies are disadvantaged." Welch notes that many of the amicus curiae groups on the government’s side are business groups representing minorities. "There isn’t any United Association of Disadvantaged Businesses in there," Welch says.

On the Adarand side, several of the other conservative foundations are represented: Atlantic Legal Foundation, Pacific Legal Foundation, Washington Legal Foundation, and a chapter of the Federalist Society for good measure. Welch says there was little, if any, coordination between the groups. Civil-rights groups are trying not to think about what will happen if the highway program is struck down as a minority set-aside. "It’s hard to see how any program that even thinks about race could survive if that happens," says LDF’s Ralston.