Norton and Adarand
January 13, 2001
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The New York Times today goes after President-elect Bush's choice as interior secretary, Gale Norton, running an article in the national section under the headline, "Norton Record Often at Odds With Laws She Would Enforce."
The article reports that Ms Norton "has repeatedly challenged some of the laws that she would be obligated to enforce." As evidence of this, the Times reports that "As Colorado's attorney general until 1998, Ms. Norton declined to defend the state in a lawsuit challenging a minority preference rule for highway contracts, a rule that she said she could not support."
The Times reports that Ms. Norton "told the governor at the time, Roy Romer, that she would be unable to represent the state in a 1997 suit brought by Adarand Constructors of Colorado Springs, Colo. That suit challenged Colorado's support of a law setting aside some contracts for businesses headed by members of minority groups, a provision that Ms. Norton has opposed as unfair."
Well, talk about unfair. The New York Times makes it sound like Ms. Norton arbitrarily decided on her own that the law was unfair. But the law wasn't just unfair -- it was unconstitutional and illegal. Rather than running this story out under the headline "Norton Record Often at Odds With Laws She Would Enforce," the Times could have more fairly headlined the article or reported it in the context of "Norton Refused to Defend Unlawful Reverse Discrimination Scheme."
Adarand Constructors is a small, Colorado Springs-based guardrail and fence subcontractor owned by Randy and Valery Pech. As Adarand's lawyers at the Mountain States Legal Foundation put it, "In 1989, Adarand submitted a bid to install a fence line on five miles of highway in the San Juan National Forest in southwestern Colorado. Despite submitting the lowest bid, Adarand lost the contract because of a federal program that gave the prime contractor $10,000 to award the contract based on race."
Adarand's legal challenge went all the way to the U.S. Supreme Court, which, in a landmark 1995 ruling, Adarand v. Pena, ruled that courts must apply a tough standard -- "strict scrutiny" -- to racial classifications of the kind that lost Adarand the contract. The Supreme Court ruled in favor of Adarand again in January of 2000.
In the meantime, a federal district court judge, John Kane, had ruled that a Clinton administration effort to defend the Colorado law -- the law that Ms. Norton refused to defend -- was "fatuous" and "fallacious." Judge Kane noted that under the standards Adarand was challenging, "the Sultan of Brunei would qualify" as a "Disadvantaged Business Enterprise" for government preference purposes.
At least one journalist who demonstrates some signs of intelligence has been covering the whole Adarand-Norton matter: Al Knight of the Denver Post. Mr. Knight noted in a column that in opposing some of the state's affirmative action policies in 1995, Ms. Norton was "doing precisely what the law requires her to do, make sure that the state is behaving in a lawful manner with minimal exposure to discrimination lawsuits."
It's just flat-out false for the New York Times to report this Adarand matter as proof that Ms. Norton "has repeatedly challenged some of the laws that she would be obligated to enforce." She'd be under no obligation to enforce those racial set-aside laws as secretary of the interior -- they are illegal and unconstitutional, as federal courts have repeatedly ruled. She was right to have challenged them.
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