The Supreme Court Dismisses The Adarand Case!!!

Finally an institution with conservative leanings has come to terms with the reality of the Adarand case. We have rarely witnessed more confusion, ignorance and emotional outbursts from normally thoughtful conservatives than with this particular case. For several months now we have made the case that that the Bush administration did an outstanding job, worthy of the applause of the entire Black electorate, in its defense of a disputed "affirmative action" program aimed at addressing discrimination and the disadvantageous reality it has produced for many in the construction business.

So, we applaud the United States Supreme Court for having the courage to recognize and admit the weakness and flaws in the arguments made by those in opposition to the program. It is a stance that the entire conservative intellectual establishment has been unable to gravitate toward. And we never were taken up on our open challenge to discuss and debate the issue with numerous conservative writers and members of think-tanks who wrote stinging critiques of the program in public.

Here is a link to what we have written regarding the case this year. Below is an Associated Press story announcing the news of the case being thrown out of the Supreme Court.

November 28, 2001

Affirmative Action Case Dropped
By THE ASSOCIATED PRESS


Filed at 5:19 a.m. ET

DENVER (AP) -- After 11 years of legal battles that reached the U.S. Supreme Court, a white businessman has ended a lawsuit over an affirmative action program he says cost him a highway contract because of his skin color -- but Randy Pech isn't giving up the fight.

The case, alleging reverse discrimination, had been seen by opponents of federal affirmative action as the best opportunity to effectively eliminate the programs.

But on Tuesday, the Supreme Court dropped plans to rule on the case, saying it had become too muddled to be an appropriate vehicle for what likely would be a landmark ruling on affirmative action.

While the high court's decision ended Pech's original lawsuit, Pech plans to continue pressing another case in U.S. District Court that challenges the way Colorado administers federal contracts with a preference to minorities, his attorney said.

``I've never changed my position,'' Pech said in Wednesday's editions of The Gazette of Colorado Springs. ``My premise has always been the same: It's wrong for the government to discriminate based on race and gender. Someday someone in power will do something about it.''

Pech, owner of Adarand Constructors Inc., sued the Transportation Department in 1990 after his $104,000 bid for a five-mile guardrail job was passed over for a $105,000 bid from a Hispanic-owned firm.

His lawsuit challenged a federal highway program that awarded general contractors a 1.5 percent bonus for subcontracting at least 10 percent of a job to ``disadvantaged business enterprises.''

In 1995, the Supreme Court declared the program unconstitutional, saying such aid must be ``narrowly tailored to remedy specific past discrimination.''

The 5-4 ruling prompted a government-wide revision of affirmative action programs. But Pech still claimed his company was losing business to minority-owned contractors.

Government attorneys argued that Pech's company qualified under the new rules and couldn't prove it was harmed.

``The fact that the plaintiff now qualifies and is a beneficiary of the program I think is perhaps the best evidence that there's not a clear racial demarcation between who can be in the program and who cannot,'' said Marisa Demeo, Washington-based regional counsel for the Mexican-American Legal Defense and Educational Fund.

The Supreme Court's short ruling Tuesday laid out the procedural problems with the case and said that the justices could not step in to set things right. It essentially erases the Adarand appeal and leaves a federal 10th U.S. Circuit Court of Appeals ruling against the company in place.

Temple University Law School Associate Dean Mark Rahdert said the high court's decision not to rule in Pech's case ``will allow for a clearer and more focused ruling'' when a similar case comes before it in the future.

``It allows the program to remain intact and awaits a challenge by someone who can demonstrate that they are presently harmed by the existing program rather than by the claimed residue of past affirmative action,'' he said.

Curt Levey, an attorney for the Center for Individual Rights, said he was confident that when the right case is found, the court will strike down the disadvantaged business enterprise program.

``In the short term, it's good news for supporters of racial preferences in contracting,'' Levy said. He said the Supreme Court's interest in the case ``shows they're very concerned about the unconstitutional aspects of the program and it's just a matter of finding a case that doesn't have the procedural problems this one has.''

The case is Adarand Constructors Inc. v. Mineta, 00-730.

Wednesday, November 28, 2001

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