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Published in Print: November 26, 2003, as High Court Declines Chance To Revisit Minority Set-Asides

High Court Declines Chance To Revisit Minority Set-Asides

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Adding to the national debate over affirmative action, the U.S. Supreme Court declined last week to review a municipal policy that set goals for the inclusion of minority and women contractors in construction projects. The court rebuffed the appeal over the vigorous objection of two of the justices.

The case did not directly involve schools, but it is of interest to educators, in part because some districts operate similar programs. The case also touches on the standard of proof needed to justify race-conscious policies, including those involving student assignment.

Despite a dissent by Justice Antonin Scalia joined by Chief Justice William H. Rehnquist, the high court on Nov. 17 let stand a federal appeals court ruling upholding the city of Denver's program that set goals for the use of construction-related businesses owned by women, African-Americans, Hispanics, Asian-Americans, or American Indians.

The city lost at the trial-court level in a lawsuit brought by a white-owned construction company, which claimed that the policy's minority-contracting goals violated the 14th Amendment's guarantee of equal protection of the law. But a three-judge panel of U.S. Court of Appeals for the 10th Circuit, in Denver, unanimously concluded in February that the city had justified the program as needed to rectify discrimination in the local construction industry.

The majority of the Supreme Court issued no explanation for declining to review Concrete Works of Colorado Inc. v. Denver (Case No. 02-1673).

But in his 10-page dissent, Justice Scalia said the 10th Circuit court had misinterpreted Supreme Court precedents by letting Denver justify the program with statistical studies and other data that he called "inconclusive."

He suggested that the decision not to take the Denver case was part of a trend evident in the high court's ruling last June upholding the use of affirmative action in admissions to the University of Michigan's law school.

"Coming on the heels of our decision last term in Grutter v. Bollinger," wrote Justice Scalia, who dissented in the Michigan law school case, the court's refusal to consider the Denver program "invites speculation" that its 1989 ruling striking down a set-aside program for minority contractors in Richmond, Va., "has effectively been overruled."

That case, City of Richmond v. J.A.Croson Co., established that affirmative action programs at the state and municipal levels must pass the highest level of constitutional scrutiny and be designed to directly remedy past discrimination.

School districts that have been sued over minority-contracting policies include Atlanta and Memphis, said George R. LaNoue, a University of Maryland professor of political science. Both districts settled the cases—Atlanta in 1996 and Memphis in 1999—and agreed to adopt race-neutral policies, he said.

Some districts, including Chicago, still maintain minority-contracting policies, said Mr. LaNoue, who directs the Project on Civil Rights and Public Contracts at the university's Baltimore County campus. He added that he knew of no reliable statistics on their prevalence.

Texas Appeal Declined

In other action, a Texas school district lost its bid for high court review of a case involving the firing of one of its administrators, who in 2000 was awarded damages of more than $215,000 in U.S. District Court.

Randall Coggin sued the Longview Independent School District after his contract was terminated without a hearing in 1999. The district had alleged that Mr. Coggin, an assistant superintendent who had worked for the 8,000-student system for 30 years, had engaged in unprofessional conduct.

Texas law requires that school employees faced with termination be given a hearing. State education officials refused to appoint a hearing examiner to Mr. Coggin's case, though, on grounds that his request arrived in the mail too late, according to court papers. The district then fired him. Mr. Coggin sued, alleging a violation of his constitutional right to due process of law.

The trial court agreed with him, as did a majority of the full U.S. Court of Appeals for the 5th Circuit, in New Orleans. But the appeals court issued splintered opinions on whether the state, the district, or Mr. Coggin himself was to blame for his failure to get an administrative hearing.

On Nov. 17, the Supreme Court declined without comment to take up the district's appeal in Longview Independent School District v. Coggin (No. 03-283).

Vol. 23, Issue 13, Page 20

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