Another View: New affirmative action rulings affect contracting

Bradley S. Wine

Lisa Yonka

Two recent Supreme Court decisions on affirmative action are already affecting federal, state, and municipal governments and government contractors. The decisions update the court's thinking expressed in a famous 1995 contracting case.

In the earlier Adarand Constructors v. Pe'a, the court held that the use of racial classifications in federal affirmative action programs is constitutional only when the classification serves a compelling government interest and is narrowly tailored to achieve that interest'a tough standard. Adarand, a highway construction company, had lost a subcontract in Colorado to a minority vendor even though it, Adarand, had submitted a lower bid.

In the Adarand case, the Supreme Court held that the use of race-based classifications in decision-making, no matter what the justification, is discriminatory conduct. Nevertheless, federal legislation using race-based classifications in decision-making could be deemed constitutional if it met two criteria.

First, the government must specify the past discrimination responsible for the preference program and demonstrate that this past discrimination has present effects.

Second, the program to remedy those effects must be narrowly tailored. Factors to consider include the efficiency of alternative remedies, planned duration of the remedy, whether the proportion of minority workers served by the remedy matches that of minority groups in the relevant population and the effect of the plan on third parties.

But in two college admissions cases this year'Grutter v. Bollinger and Gratz v. Bollinger'the famous University of Michigan law school case'the Supreme Court revised its position.

For the first time, the court dispelled the notion that remedying past discrimination is the only justification for a narrowly tailored race-conscious policy.

The court has arguably lowered the bar set in Adarand by holding that government entities are no longer required to quantify past discrimination. It can instead rely on the broad, compelling need for diversity'as long as the means of achieving such diversity are properly tailored.

A majority of justices indicated a willingness to sustain similar affirmative action programs in noneducational settings'including government contracting. That could mean a boon for minority-owned government contractors and government entities that wish to aggressively promote such programs.

Already, some states are proposing ballot initiatives and legislative efforts to block the use of race as a factor in their activities. A Michigan initiative would bar state agencies from using racial considerations in college admissions, employment and contracting. Colorado's governor, Senate president and Senate Judiciary Committee chairman have promised to ensure that race is not a factor in admissions, hiring or any other government business such as contract awards.

Although the long-term impact of the Grutter and Gratz decisions on government contracting remains to be seen, what is clear is that advocates and opponents of affirmative action will actively test the boundaries of these decisions and that the government contracting community won't be immune from such challenges.

Bradley D. Wine is a lawyer with the Washington firm of Dickstein Shapiro Morin & Oshinsky LLP. Lisa Yonka is a law student at the University of Maryland.

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