Minority ruling

National Review, Oct 13, 1997 by William Perry Pendley

Mr. Pendley is president and chief legal officer of Mountain States Legal Foundation. He argued and won Adarand Constructors, Inc. v. Pea before the U.S. Supreme Court.

ADARAND Constructors, Inc., a small family-owned Colorado Springs company that builds highway guardrails, made history in 1995 when the U.S. Supreme Court ruled in its favor in its challenge to several laws that require federal officials to award highway contracts on the basis of race. The Court ordered federal lawyers to meet the "strict scrutiny test, and sent the case back to federal district court in Colorado.

On June 2, 1997, after nearly two years of Clinton Administration delays, Judge Kane found the federal laws, and their implementing regulations, to be unconstitutional. Applying the Supreme Courts requirement that race-based programs be "narrowly tailored, Judge Kane found the program constitutionally flawed as "both underinclusive and overinclusive. "Indeed, he declared, "under these standards, the Sultan of Brunei would qualify [as socially and economically disadvantaged]. Judge Kane, who was appointed to the federal bench in 1977 by President Carter, also enjoined the Federal Government from "administering, enforcing, soliciting bids for, or allocating any funds under the program.

With the federal issue settled, Adarand turned its attention to the State of Colorado and the Colorado Department of Transportation (C-DOT). Most highway contracts awarded in Colorado are awarded by C-DOT and the federal laws declared unconstitutional by Judge Kane are the basis upon which C-DOT runs its highway program.

Colorado Attorney General Gail Norton reviewed Judge Kanes 71-page opinion and concluded that the federal program was dead and that Colorados program was therefore "indefensible. Attorney General Norton was right. When the Clinton Administration asked Judge Kane to narrow his ruling, he gave a one word response: "DENIED. Then when the Administration asked to intervene in Adarands lawsuit against Gov. Roy Romer, Judge Kane denied its motion, saying the Administrations arguments were "fatuous and "fallacious, and that they "flagrantly ignore [this courts] recent ruling.

Nonetheless, Gov. Romer rejected Attorney General Nortons advice and hired former Colorado Supreme Court Justice Jean E. Dubofsky to defend C-DOTs race-based program. In order to demonstrate that C-DOTs program was unlike the federal program invalidated by Judge Kane, she argued that although C-DOTs program was required by federal law and set forth in detail in federal regulation, C-DOT had the authority to ignore those federal requirements. Furthermore, she asserted that Gov. Romer had the authority, without the adoption of any legislation by the State Legislature, to award C-DOT contracts on the basis of race. Finally, she tried to convince Judge Kane that C-DOTs program was substantially different from the federal program because it used different standards although the brief provided few details. The testimony by C-DOT officials was even more enigmatic.

Rather than initiate a lengthy inquiry into these complex matters, Judge Kane took Gov. Romer at his word that C-DOTs program was based, not on race as the federal program had been, but on "disadvantage. Then in a remarkable twist he declared that Randy Pech, a white male, was disadvantaged as a result of the long enforcement of an unconstitutional federal law that awards contracts on the basis of race.

Judge Kanes ruling is a shocker and a serious setback for Gov. Romer and for federal officials who were quietly supporting his effort. While Romer has ostensibly saved C-DOTs program, he is left with no real program to implement since white males may now qualify as disadvantaged. The response of the Clinton Administration, and other governors, should be fascinating to watch.