Never-Ending Supreme Court Case Has Bush Fighting for Affirmative Action

Back when he was just a hopeful candidate with his eye on the White House, George W. Bush expressed concerns about affirmative action.

"I don't like quotas," Bush said during the third presidential debate against former Vice President Al Gore in October. "Quotas tend to pit one group of people against another. Quotas are bad for America. It' not the way that America is all about."

But the Bush administration's Justice Department is set to defend the policy of awarding some government contracts based on race when it argues the remnants of a long-running case returning to the Supreme Court this fall.

The case involves Colorado-based Adarand Constructors, a firm that installs highway guardrails. Because of Department of Transportation affirmative action policies implemented in 1989, the Colorado business lost a sub-contracting bid to a minority-owned company – even though Adarand was the lowest bidder. Adarand claimed it was a case of reverse discrimination.

"They said, we think our constitutional rights have been violated," said the firm's lawyer William Pendley. "We agreed, and we have been in court ever since. ... This case has been underway under three presidents and six secretaries of transportation."

The trip to the Supreme Court in the fall will be Adarand's third, according to Pendley.

But supporters of affirmative action say keeping those programs intact is important for equal rights.

"What we need to do I think as a nation and what I think the courts ought to do is to not look at where we have been but to look at where we are," said Kwesi Mfume, president and CEO of the National Association for the Advancement of Colored People. "It's not a matter of having come a long way; it's a matter of having yet a long way to go in terms of equal employment."

Bill Clinton and his administration adopted a "mend it, don't end it" approach to affirmative action, and actually filed briefs in the Adarand case on their last full day in office. Those legal filings have, to some degree, limited the options of the Bush administration.

"Frankly, I'm not surprised," said Pendley of Bush's approach. "It would have been a huge step for the president to break ranks with the prior administration regarding this case."

But it won't sit well with many conservatives who want the Bush team to approach the controversial issue in a new way. For now, though, the current president, attorney general and solicitor general are doing what their predecessors have done: defending Justice Department arguments for the very programs they've decried in the past.