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Washington�Justice Antonin Scalia has accused fellow Supreme Court justices of going soft on affirmative action, saying on Nov. 17 that the court is abandoning its own strict rules for when government may treat one race differently from another. Fresh off last session’s divisive cases involving affirmative action in college admissions, Scalia argued that the high court should revisit racial preferences in the awarding of government contracts. A special program for minority businesses in Denver plainly does not meet the test the Supreme Court has set for such programs and the court should have said so, Scalia wrote in an unusual dissent. Concrete Works of Colorado Inc. v. Denver, No. 02-1673. Most of the justices voted not to hear the Denver dispute, meaning that a lower court ruling in the city’s favor will stand. Scalia’s written objection broke the ordinary silence that surrounds the court’s choices about which cases to hear. “If the evidence relied upon by governmental units to justify their use of racial classifications can be as inconclusive as Denver’s evidence in this case, our former insistence upon a ‘strong basis in evidence’ has been abandoned,” Scalia wrote. Chief Justice William H. Rehnquist also signed Scalia’s dissent. June ruling In June, a divided court allowed the nation’s colleges and universities to select students using considerations that include race. The court majority emphasized that race cannot be the overriding factor but acknowledged a broad social benefit from affirmative action. The Denver case involved Concrete Works of Colorado Inc., a company that contends it unfairly lost contracts to minority-owned businesses. Lawyers for the city argued that the program does not impose quotas or set-asides but does try to help contractors who have been discriminated against. Charles Rothfeld, one of Denver’s attorneys, told justices in a filing that there was overwhelming evidence of discrimination in Denver construction and that the city program was directed to fix that. Conservative groups, including the Pacific Legal Foundation, supported the contracting company. They told the court in a brief that the city program is too broad and that it gives “preference to Eskimos, Aleuts, and adds Native Hawaiians for good measure.” The Supreme Court should have used the case to make clear that it stands by its previous insistence that any racial line-drawing is suspect, and that the courts will vigorously “smoke out illegitimate uses of race,” Scalia wrote. To justify such a broad program, the government that sponsors it must show evidence that past discrimination was so pervasive that any minority business would have suffered, Scalia said. “Absent such evidence of pervasive discrimination, Denver’s seeming limitation of the set-asides to victims of racial discrimination is a sham, and the only function of the preferences is to channel a fixed percentage of city contracting dollars to firms identified by race,” he wrote. Scalia and Rehnquist were on the losing side in the college admissions case, along with justices Clarence Thomas and Anthony M. Kennedy. Thomas and Kennedy did not sign on to Scalia’s objection in the case and did not say why. All four justices have opposed affirmative action policies in the past, including in other cases involving government contracts.

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