Affirmative action challenged

Five years ago, Randy Pech was just a small businessman in Colorado. Then he lost a contract to a Latino-owned competitor. Today, he is protagonist of a legal battle which could pull the rug from under every federal government affirmative action p rogramme giving preference to racial minorities.

In a challenge viewed as potentially historic by legal scholars, political analysts and anxious civil rights groups alike, the Supreme Court yesterday heard oral arguments in case 93-1841, pitting the US Transportation Department against Adarand Constructors, Mr Pech's Colorado Springs firm which claims to have been victimised when it lost a tender for motorway guardrail work to a rival company, Gonzales Construction.

It will be months before judgment is announced. But such have been the changes in the High Court since its last major affirmative action ruling in 1990, that a majority this time could uphold Mr Pech's complaint. And if it delivers a clear-cut verdict, every existing federal law explicitly favouring racial minorities would be undercut.

In the tussle for the guardrail deal, Adarand entered the lowest bid. But the prime contractor for the federally funded project gave the job to the Gonzales company - in the process picking up the 10 per cent bonus which the Transportation Department awards for work given to "disadvantaged business enterprises". Mr Pech says this bonus is simply "a bribe".

Thus far lower courts have dismissed his claims that he was a victim of "reverse discrimination" which violates the constitutional guarantee of equal rights for all; whites as well as blacks, Hispanics and every other minority. But the Supreme Court agreed to take the case, and now the outcome may be very different.

Not only has the national mood swung sharply to the right, amid widespread scepticism over the fruits of 20 years of experimenting with affirmative action, so has the court. In 1990, by the narrowest possible margin of 5-4, it endorsed the concept of "benign race-conscious" government action in favour of majorities.

Today the four judges who dissented are still on the court, led by Chief Justice William Rehnquist. But liberal stalwarts like Thurgood Marshall (who championed school desegregation in the 1950s), William Brennan and Harry Blackmun are not. It may now beJustice Marshall's replacement, Clarence Thomas, the sole black on the bench but a conservative foe of racial preference, who tips the balance.

If that happens, the consequences could be momentous. Affirmative action is under the most severe attack yet from conservatives on the grounds that it promotes the very discrimination its sponsors seek to eradicate.

The issue contributed to November's Republican landslide. It is a constant target of the radio talk show hosts, and of a possible referendum initiative in California. Nothing however would have the impact of an adverse and clear-cut Supreme Court ruling,founded on constitutional grounds.