Civil Liberties

Colorblind Affirmative Action


A colorblind society and affirmative action are usually presented as mutually exclusive. Now affirmative action bureaucrats in Colorado have found a way to split the difference.

It's all because of Randy Pech, owner of Adarand Construction in Colorado Springs. Pech made affirmative action history when his lawsuit challenging a minority set-aside program in federal highway contracting, Adarand v. Peña, made it to the Supreme Court. In its 1995 decision, the Court declared that federal affirmative action programs had to be more narrowly tailored than previously and sent the case back to district court in Colorado. In June, Pech won the case, and the highway contracting program was overturned (though it has not yet stopped operating completely, and the federal government may yet appeal).

Pech didn't stop there. He filed a further lawsuit, Adarand v. Romer, challenging Colorado's racial preference programs. To beat Pech's challenge, the state quickly changed the way it decided which business owners were disadvantaged, so that the status no longer depended necessarily on the owner's race or sex.

U.S. District Court Judge John Kane decided, since color was no longer key, that Pech's history of being discriminated against by the old set-aside programs made him disadvantaged–and that if he was covered by the program, he had no standing to sue to overturn it.

"What Colorado has done," says Pech's lawyer, William Perry Pendley of the Mountain States Legal Foundation, "is drawn a disadvantaged business enterprise circle and put everyone inside it: minorities because of race, and white guys for all the years they've been discriminated against by federal rules."

Pendley points out that the feds haven't looked kindly on states that alter affirmative action programs on their own. Oregon tried to eliminate some highway construction set-aside programs after the Supreme Court's Adarand decision, but a federal threat to cut off highway funds changed the state's mind.

"What door has this opened for other states?" Pendley wonders. "Now Pete Wilson or someone could say, `Why draw a circle with everyone in it when it costs millions to just run these programs? Why not just take the lowest bid on projects and kill the silly program?'"

Pech is planning to apply as a disadvantaged business owner but had not done so at press time.