On November 17, the US Supreme Court announced that it would let stand a decision of the Tenth Circuit Court of Appeals approving of Denver’s use of race and gender based affirmative action in city construction contracts. Justices Scalia and Rehnquist dissented from the Court’s decision not to review Concrete Works of Colorado v. City and County of Denver.
The Denver program targets businesses that are 51% minority or women owned and controlled and which either certify that they have been the victim of discrimination or were formed after 1996. For city or county contracts, prime contractors must show that they requested bids from program members and that they did not refuse a low bid from a qualified program member. A business owned by a white male challenged these requirements, even though the requirements do not guarantee contracts for program members.
For the US Supreme Court to take a case, four justices must vote in favor of review. Justices Kennedy and Thomas, who usually do not support affirmative action, chose not to join the dissent or, apparently, to vote that the case be reviewed by the full court.