Affirmative Action Case Moves Toward Supreme Court Another challenge to affirmative action programs in federal contracting is headed for the U.S. Supreme Court. St. Paul, MN, attorney Thomas Olson said he will file an appeal with the high court on behalf of Sherbrooke Turf Inc., a Minnesota company that challenged the Transportation Department’s Disadvantaged Business Enterprise program. The 8th U.S. Circuit Court of Appeals upheld the constitutionality of the program Oct. 6. The appeals court decided the Sherbrooke case together with a similar case filed by a Nebraska firm, Gross Seed Co. Olson told Set-Aside Alert the cases give the Supreme Court its first chance to rule on the revised DBE program, which was passed by Congress in the aftermath of the 1995 Adarand decision limiting affirmative action. The 8th Circuit upheld the revised program, saying, “Congress and DOT have taken significant steps to minimize the race-based nature of the DBE program. Its benefits are directed at all small businesses owned and controlled by the socially and economically disadvantaged.” Olson said he is also challenging the way states implement the federal DBE program, another issue the Supreme Court has not addressed. Four of the nine justices must agree to review the case in order for it to be placed on the court’s docket. The Supreme Court dismissed a second challenge to the Transportation Department’s DBE program by Adarand Constructors Inc. on procedural grounds two years ago. However, in an unsigned opinion, the court acknowledged, “This case presents questions of fundamental national importance calling for final resolution by this Court.” More recently, the court refused last month to consider a challenge to an affirmative action program for minority- and woman-owned businesses in Denver. (SAA, 11/28) The 8th Circuit’s opinion in Sherbrooke Turf Inc. v. Minnesota Department of Transportation et al. (docket number 02-1665) and Gross Seed Co. v. Nebraska Department of Roads (02-3016) is available at www.ca8.uscourts.gov.