NATION/WORLD
UNIVERSITY DAILY KANSAN
Wednesday, January 18, 1995
5B
Supreme Court hears arguments in Colorado affirmative action case
Company claims agency wrongly based job on race
The Associated Press
WASHINGTON — A federal program offering special help to companies owned by racial and ethnic minorities unlawfully takes business away from companies owned by whites, the Supreme Court was told today.
"That's an impermissible racial stereotype... that they need the help," Denverlawyer William PerryPendley argued in behalf of a white businessman who, he said, "cannot compete on an equal footing" because of the affirmative action program.
But Solicitor General Drew Days, arguing for the Clinton administration, said that the program was a lawful and necessary means to combat "the continuing effects of well-documented discrimination."
In an hour-long argument session,
Pendley and Days were bombarded
by questions from eight of the nine justices. Justice Clarence Thomas, the court's only Black member, known to be against affirmative action, remained silent.
The court is expected to announce its decision in the Colorado case by July, and at stake could be federal contracts worth billions of dollars and perhaps the future of all government affirmative action.
Under one affirmative-action program required by Congress, the Transportation Department's Central Federal Lands Highway Division gives contractors on federal projects a 1.5 percent bonus if at least 10 percent of their subcontracts go to "disadvantaged business enterprises."
Much of today's argument focused on the built-in presumption that minority-owned firms are disadvantaged.
Pendley said the presumption isn't "victim-specific," therefore violating the constitutional safeguard of equal protection.
Days said that white-owned companies have a chance to prove that an individual minority-owned firm really isn't disadvantaged but that he did
not know of a successful challenge to the presumption.
The federal agency in 1898 wrote a $10,000 bonus into a highway-building project in southern Colorado and awarded it to Mountain Gravel and Construction Co.
Mountain Gravel subcontracted all the project's guardrail work to Hispani-owned Gonzales Construction Co. even though the white-owned Adarand Constructors, Inc., submitted a lower bid.
Adarand sued the government in 1990, contending the subcontracting policy was unlawfully based on race. Two lower courts ruled against Adarand, relying on a 1980 Supreme Court decision that said Congress lawfully could set aside 10 percent of its public works budget for minority businesses.
Courts generally don't let governments take race into account without a compelling reason and do so in a way narrowly tailored to achieve that purpose. It's a stiff test, which judges call "strict scrutiny."
The Supreme Court used that test when in 1989 it struck down a program in which Richmond, Va.
reserved 30 percent of all city contracts for minority-owned businesses. That ruling said affirmative action plans by cities and states must be aimed at remedying some identifiable past wrong.
But racial considerations by Congress are different, the court said in 1990, upholding racial preferences when awarding licenses for radio and television stations.
"Benign race-conscious measures mandated by Congress, even if those measures are not remedial, are constitutionally permissible," the 1990 ruling said.
But only one justice who voted with the majority in those cases — John Paul Stevens — remains on the bench. Today's court is far more conservative.
Four dissenters from the 1900 ruling — Chief Justice William Rehnquist and Justices Sandra Day O'Connor, Antonin Scalia and Anthony M. Kennedy — remain. They now are joined by Thomas.
Also new to the court's study of affirmative action are Justices David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.
M&M's new hue may melt in mouths
The Associated Press
NEWARK, N.J. — Just in case some M&M's melt in your hand and not in your mouth, the manufacturer at least wants you to like the color.
M&M-Mars is asking fans of the candy-coated chocolate pieces to select the newest hue for the mix. Don't get too wild, though — the choices for color No. 7 are blue, purple and pink.
Candy lovers also may vote to leave
the mix as it is: brown, yellow, orange, red, green and tan.
M&M-Mars is considering another candy color that will reflect new color preferences of the 1990s, said Pat D'Amato, representative for Hackettstown-handed M&M-Mars.
M&M's, introduced in 1940, are made in different-hued mixes four times a year: Christmas, Valentine's Day, Halloween and Easter.
The traditional mix has remained unchanged since 1949 — except for
the decade-long absence of the red piece. Red was removed because of a scare about food dye and restored in 1987.
Ballots to vote on the new color are available at most stores that sell candy. The results will be announced April 18. If voters go for a change, the new M&M's should be in stores by September, D'Amato said.
To drum up interest, people dressed as pink, purple and blue M&M's will make an appearance at
the Super Bowl and dance at Mardi Gras.
"I think they ought to leave it the way it is." Maryann Mandonia of Pittsburgh said as she shopped at a Newark International Airport newsstand. She didn't like the new choices "because they are medicine colors."
But Leslie Vasquez, a cashier at the newsstand, said she would like to see a purple M&M.
"It's a nice color, and I think that people are going to like it," she said.
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