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Federal Case Could Impact Future of Affirmative Action

By David G. Savage
Los Angeles Times

With the fate of federal affirmative action likely hanging in the balance, the Supreme Court on Tuesday heard two conflicting accounts of how those programs work in practice.

A lawyer for a white contractor said federal law creates "an impermissible racial stereotype" in its contracting rules. All whites are penalized and all minority entrepreneurs given an advantage solely because of their race or ethnic heritage, he said.

"All they do is step forward and prove their race," Denver attorney William Perry Pendley said of the minority contractors.

But the Clinton administration's top courtroom lawyer said federal law merely sets forth a "presumption" that blacks, Latinos, Asians and American Indians have suffered an economic disadvantage because of their race and heritage.

Minority entrepreneurs who are not "disadvantaged" are not entitled to preferences, U.S. Solicitor Drew S. Days III told the justices.

During the hourlong argument, the justices sounded sharply divided on whether Congress can continue to require that federal agencies employ racial and ethnic preferences in awarding billions of dollars in contracts.

A more liberal court has upheld such affirmative action programs in the past, but the justices in September agreed to consider the white contractor's claim that the Constitution demands a color-blind approach.

During the lively argument on affirmative action, Clinton appointees Stephen Breyer and Ruth Bader Ginsburg took the government's side.

"Isn't it a reasonable presumption to say black people have suffered prejudice or cultural bias?" Breyer asked.

But Chief Justice William H. Rehnquist and Justices Antonin Scalia and Anthony Kennedy, all appointees of President Reagan, disputed the legality of a racial preference.

"Why couldn't Congress do without this presumption" and give preferences to entrepreneurs who have suffered some type of disadvantage regardless of their race, Rehnquist asked.