By Laurie Asseo, Associated Press, 01/12/00
WASHINGTON - The Supreme Court today revived a lawsuit by a Colorado construction company that in 1995 came out the winner of a major decision sharply restricting federal affirmative action programs.
In an unsigned opinion, the justices let Adarand Constructors Inc. challenge a program that helps disadvantaged businesses. Even though the company itself was granted disadvantaged status, justices said it was not clear that designation would stand.
"It is no small matter to deprive a litigant of the rewards of its efforts, particularly in a case that has been litigated up to this court and back down again," the justices' opinion said.
Adarand sued in 1990 over a Transportation Department program that gave bonuses to highway contractors if at least 10 percent of their subcontracts went to "disadvantaged business enterprises." Businesses owned by racial minorities were presumed to be disadvantaged.
Adarand, owned by a white man, argued that the policy unlawfully was based on race.
The nation's highest court used the Adarand case in 1995 to set strict limits on federal affirmative action, ruling that they must "serve a compelling governmental interest and must be narrowly tailored to further that interest."
A federal judge in Colorado later used the new standard to rule the program unconstitutional.
But on a separate lawsuit filed by Adarand, a judge said the company might be eligible for disadvantaged-business status because of the federal judge's ruling that Adarand had been a victim of discrimination. Adarand sought and was granted such status.
The 10th U.S. Circuit Court of Appeals then dismissed Adarand's lawsuit against the federal government, saying the case was moot because Adarand now has the disadvantaged-business designation it was challenging.
The appeals court also wiped out the judge's ruling that found the federal program unconstitutional, saying the government otherwise would be bound by a ruling it was unable to appeal.
Adarand's lawyers argued to the Supreme Court that the case should not be declared moot because the dispute could arise again. The appeal said the company no longer has disadvantaged-business status because it did not seek a renewal.
Justice Department lawyers said the case was properly declared moot because Adarand "has no claim that, at this time, it is being denied subcontracts on account of race."
Today, the justices said that because Colorado's procedure for certifying businesses as disadvantaged differed from federal requirements, it appeared likely that Adarand's disadvantaged status would be challenged.
The federal government revised the program last February, dropping the requirement that recipients of highway, mass transit and airport funds set a 10 percent goal for minority subcontracts.
The case is Adarand Constructors Inc. vs. Slater, 99-295.
