WASHINGTON: A dispute within the Supreme Court over what, if anything, to do next about affirmative action broke into theon Nov. 17 when two justices dissented from the court’s refusal to take up a white-owned construction company’s challenge to an affirmative action program for public contracting in Denver.

The two justices objected that in upholding the affirmative action plan, the federal appeals court in Denver had failed to insist on sufficient proof that the program was necessary to overcome existing discrimination in the construction industry. By failing to take the appeal, the two justices said, the Supreme Court in effect blessed what they characterized as a slippage from the rigorous review required by court precedents.

Denial of the appeal “is important because of what it signals about this court's ongoing commitment to exacting judicial review of race-conscious policies,” the dissenters said. Referring to one of the most important precedents in this area, a 1989 decision that invalidated a minority set-aside program for public contracts in Richmond, Va., they said the latest action “invites speculation that that case has effectively been overruled.”

(By Permission, The New York Times)