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TOP COURT HAS A NEW CHANCE TO MAKE JUSTICE COLOR-BLIND

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No uglier accusation can be leveled these days than the charge that some person or some act is "racist." On Dec. 17 the Supreme Court will take a hard look at a racist federal program. If "equal protection of the laws" really means EQUAL protection, the high court will throw the program on the junk pile of history.

The case to be argued is Adarand Constructors vs. Pena. The program is a set-aside scheme to benefit companies that are presumed to be "socially and economically disadvantaged."No one disputes the facts. Five years ago the U.S. Department of Transportation proposed to build a 4.7-mile section of a highway in the San Juan National Forest in Colorado. The prime contract went to Mountain Gravel & Construction Co.

The Adarand company, owned by white people, submitted a low bid for installing guard rails. But Mountain Gravel awarded it to Gonzales Construction Co. instead. For its profitable generosity, Mountain Gravel received an incentive bonus of about $30,000. The bonus more than offset the difference between the competing bids.

Why did Gonzales get the contract? It is because Gonzales, under regulations of the Small Business Administration, is "presumed" to be "socially and economically disadvantaged."

What a presumptuous presumption! This is how the system works. Under a law dating back to 1953, the government sets aside 5 percent of all procurement contracts for small-business concerns that are owned by socially and economically disadvantaged individuals. Through the years, the Small Business Administration has defined and redefined the terms.

Currently prime contractors are required to "presume that socially and economically disadvantaged individuals include black Americans, Hispanic Americans, Native Americans, Asian Pacific Americans and other minorities."

There is not one line of evidence in the record that owners of the Gonzales company, as individuals, ever have been subjected to ethnic prejudice or cultural bias because they are known as Hispanics. Gonzales got the contract because Gonzales is a Hispanic name, and Mountain Gravel wanted the $30,000 bonus.

The system is rotten to the core. It epitomizes the racism in reverse that has done such fearful damage in the years since the high court put an end to state-ordered segregation in 1954.

In recent years the concept of equal protection has taken an Orwellian twist. Some have become more equal than others. The Supreme Court has contributed richly to the process.

Under political pressure, the Small Business Administration agreed in 1982 that Asian Indians must be presumed to be socially and economically disadvantaged. Sri Lankans were added in 1988, Tongans and Indonesians in 1989. Hasidic Jews, however, were rejected in 1980. Iranians lost their bid for special privilege when they could not prove long-term bias against them.

In deciding the Adarand case, will the high court overrule or modify Fullilove? Will the court make a significant shift back toward true equal protection?

The justices have split 5-4 on key decisions in the field. We cannot know - we can only speculate - how the newest justices will vote on Adarand. They could vote to raise a new landmark of equality, or they could vote to continue legalized racism in a nation whose Constitution presumably is color-blind.