Supreme Court Won't Decide Affirmative Action Case The Supreme Court has refused to consider a challenge to an affirmative action program for minority- and woman-owned contractors in Denver. The decision not to decide provoked an unusual dissent from two of the court’s conservative members, Chief Justice William Rehnquist and Associate Justice Antonin Scalia. Normally, when the court declines to consider a case, it does so without comment. The high court on Nov. 17 let stand a ruling by the 10th Circuit Court of Appeals upholding a Denver program that gave special favorable treatment to minorities and women in city contracts. A white-owned company, Concrete Works of Colorado, had challenged the program. In dissent, Scalia wrote that there was insufficient proof that the Denver program was necessary to remedy discrimination in the construction industry. Prior court rulings require such proof to justify a race-conscious preference. Scalia accused the court’s majority of turning their backs on the 1989 Croson decision, the Richmond, VA, case that set limits on affirmative action programs in contracting. He said the high court’s refusal to consider the Denver case “invites speculation that (Croson) has effectively been overruled.” The chief justice joined Scalia’s dissent. The case gave the court a chance to step back onto the hot coals of affirmative action in contracting, following its decisions last summer in two Michigan cases involving minority preferences in college and law school admissions. But a majority of justices wanted no part of the Denver dispute, just as they declined to decide the Adarand appeal two years ago on procedural grounds. That case involved a set-aside program for highway contractors. (SAA, 12/7/01) Legal analysts cautioned against speculating about why the court refuses to accept a particular case; it could be simply that their docket is too full. But the analysts pointed out that two other justices who have voted against affirmative action in the past, Clarence Thomas and Anthony Kennedy, did not vote with Scalia and Rehnquist. It takes votes of only four of the nine justices for the court to accept an appeal. Denver’s program was not a set-aside; it required prime contractors to show that they had solicited bids from minority- and woman-owned subcontractors. The program is no longer in operation. The case is Concrete Works of Colorado v. City and County of Denver, No. 02-1673.)