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Advantage: "Disadvantaged"
August 8, 2001

In 1989, Adarand Constructors, a family-owned Colorado guardrail company, bid $104,000 for a 4.7 mile job along the Dolores River. Theirs was the low bid on the Department of Transportation project being supervised by local contractor Mountain Gravel, but Adarand failed to get the job. Instead, the contract went to Gonzales Construction, a competitor that bid $106,000. Puzzled, Adarand owner Randy Pech asked for an explanation. Mountain Gravel answered by introducing him to the Subcontracting Compensation Clause, a Department of Transportation invention that awarded a ten percent bonus to any subcontractor who used a DBE - disadvantaged business enterprise. Because Gonzales Construction had a Hispanic CEO, it qualified for the kick-back.

Randy Pech lost the job, but the defeat gave him standing to challenge the discriminatory provision. In 1992, he took his case to the U.S. District Court for Colorado, which ruled against Adarand. On appeal, the Tenth Circuit upheld the ruling. In 1995, Randy Pech petitioned the Supreme Court where, by a 5 to 4 vote, the justices ruled that the program was constitutionally suspect and sent the case back to the U.S. District Court for review. In June 1997, the district court again ruled on Adarand, this round determining that the DBE was unconstitutional.

Buoyed by the victory, Adarand sued the state of Colorado to overturn a state version of the federal DBE statute. To head off the lawsuit, the state revamped its affirmative action laws, but Randy Pech wasn't satisfied - until a judge suggested that under the new rules, Adarand itself might qualify as a DBE. The ploy succeeded, and in a curious "if you can't beat 'em" twist, Adarand won "disadvantaged" status. But the reclassification didn't sit well with the Tenth Circuit. In March of the following year, the court concluded that if Adarand was "disadvantaged," its former case was moot.

In a now familiar drill, Pech appealed a second time to the Supreme Court, and in January 2000, the high court ruled that Adarand's new standing did not invalidate its prior claim, but returned the case to the Tenth Circuit to rule on the merits of the Subcontracting Compensation Clause. The circuit court once again deemed the program constitutional, so this fall, Adarand returns to the Supreme Court.

By week's end, the White House will join this miry odyssey through the intricacies of affirmative action. But rather than backing the truly disadvantaged contractor, the Administration will support the discriminatory standards of the Department of Transportation.

USA Today reports that "Officials offer numerous reasons for defending the contracting law, including institutional consistency and not wanting to alienate Hispanic-American voters." No mention of "justice for all." Rather, at the heart of its case against Adarand, the government will claim "compelling interest" in boosting minority business as ransom for past wrongs. By the federal tally, 60% of the American population - not including Randy Pech -- qualifies for victim status, and the state is compelled to make reparations at the expense of the rest.

The ink is near dry on the brief due August 10, and Attorney General John Ashcroft has gone on record promising to "defend the regulations of the Department of Transportation." But as the government prepares its case, it would do well to review the opinion of Justice Antonin Scalia the last time Adarand took a tour of the Supreme Court.

"In my view, government can never have a 'compelling interest' in discriminating on the basis of race in order to make for past racial discrimination in the opposite directionů.To pursue the concept of racial entitlement - even for the most admirable and benign of purposes - is to reinforce and preserve for future mischief the way of thinking that produced race slavery, race privilege, and race hatred. In the eyes of the government, we are just one race here. It is American."

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