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Justices let Denver discrimination law stand

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WASHINGTON (Reuters) -- The U.S. Supreme Court on Monday rejected a constitutional challenge to a Denver, Colorado, law that helps businesses owned by minorities and females win construction contracts, a case that provoked an angry dissent.

The justices let stand a U.S. appeals court ruling that upheld the affirmative action program that dates back to 1990. Chief Justice William Rehnquist and Justice Antonin Scalia, both longtime opponents of such programs, dissented.

The law had been challenged as a form of unconstitutional discrimination in 1992 by Concrete Works of Colorado, a firm owned by a white male. The law was adopted in 1990 and amended in 1996 and 1998.

In a dissent joined by Rehnquist, Scalia expressed concern the court's decision not to review the case sent a signal its precedent effectively has been overruled by its June ruling that upheld racial preferences in university admission decisions.

He wrote that rejection of the appeal raised questions about the court's "ongoing commitment to exacting judicial review of race-conscious policies."

Scalia said the high court should reaffirm its 1987 holding that racial classifications are constitutionally suspect.

He said the city had failed to meet the strict standard under the 1987 ruling requiring a showing that the program was narrowly tailored to remedy past racial discrimination in the Denver construction industry.

"To be clear, Denver cannot meet its burden without proving that there was pervasive racial discrimination in the Denver construction industry," 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.

Citing the June ruling, Scalia said Denver has failed to set a time limit on how long the program will last.

"Denver has been using racial preferences in public contracting for a generation, and there is no indication that this will be anything other than business as usual for the foreseeable future," he said.

Under the 1998 amended version of the Denver law, annual participation goals for minority-owned and female-owned businesses total 10 percent of the amount spent on each of two categories -- construction and design contracts.

Copyright 2003 Reuters. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.

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