Revamping Affirmative Action

The $4.8 billion 8(a) program will emerge unchanged, says top Justice Department official

P> The White House's emerging plan to revamp affirmative-action programs will have no impact on the 8(a) program, said Deval Patrick, assistant attorney general for civil rights at the Justice Department.

The plan, which will be released in the next few weeks, is intended to make affirmative-action programs immune from lawsuits, following the Supreme Court's June 1995 Adarand v. Pena ruling to restrict the government's affirmative-action programs.

"8(a) is not on the table... It is a [legally] defensible program," Patrick said April 3 at a Washington meeting hosted by the Washington-based National Coalition of Minority Businesses.

The plan is being completed as Justice Department officials prepare for their next court battle over the 8(a) program, which diverted $4.8 billion in government contracts to minority-owned companies in 1995.

On April 18, lawyers for Dynalantic Corp., based in Deer Park, N.Y., will ask a Washington judge to halt an 8(a) contract for development of a helicopter training device.

But Justice Department lawyers have won two similar court battles. On April 2, they won a court battle in New Mexico, where a judge rejected a plea by Minneapolis-based McCrossan Construction Co., to halt bidding on a $15 million 8(a) contract.

This decision followed a January victory when a Virginia court rejected a similar lawsuit by SRS Technologies, Newport Beach, Calif.

However, these and future court battles will make for "a difficult task as we go through this year," said George Stephanopoulos, a close adviser to President Bill Clinton, at the April 3 meeting.

To build public and legal support for its affirmative-action defense plans, the White House soon will ask for public comments on the draft plan to revamp contract set-asides, said Patrick.

The draft plan will be published in the government's Federal Register, a daily bulletin of government regulations. Although incomplete, the reforms outlined by Patrick are already being used to counter anti-8(a) lawsuits in lower courts. The reform plan includes:

- Increased efforts to detect and punish fraud in affirmative-action programs, such as the establishment of so-called front companies that claim minority ownership but are effectively controlled by whites.

- A continued presumption that minority entrepreneurs suffer economic and social disadvantage, thereby allowing them to easily qualify for government set-aside contracts and preferences.

- A provision that would allow non-minorities, such as white men, into the 8(a) program if the "preponderance of evidence" shows that a candidate is socially and economically disadvantaged. This relaxes the current legal standard, under which very few non-minorities have qualified for government preferences. However, "I am not convinced that means anything in practical terms," Patrick said.

- A new rule requiring prime contractors to award a percentage of subcontracts to minority-owned companies. Failure to comply could cause the prime contractor's contract to be canceled, Patrick said.

- Benchmarks set the percentage of an agency's contract dollars that should be awarded to minority owned companies, according to how many minority-owned companies would exist if discrimination had not reduced their number, he said. Benchmark tests would be set for many categories of business, such as software, food service or equipment maintenance, and would match the Commerce Department's classification of business among three-digit Standard Industrial Codes.

"The benchmarks are triggers for [the affirmative-action policies] you can use," said Patrick. When an agency is far from reaching the benchmark level for affirmative-action contracts, it can use aggressive affirmative-action measures, he said. But if an agency is close to reaching the benchmark, it can use only weaker affirmative-action policies. Still, it is unclear if reforms can shield programs from the "strict scrutiny" demanded by the Supreme Court.

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