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Test Case

For a guy bent on bringing down a multibillion-dollar federal program for minority contractors, Randy Pech is pretty low-key.

This fall the Supreme Court will revisit an affirmative-action case that could bring an end to billions of dollars in federal contracts for minority businesses. It all began with one ordinary, outraged small-company owner.

For a guy bent on bringing down a multibillion-dollar federal program for minority contractors, Randy Pech is pretty low-key.

Sure, he's been called a "civil-rights hero." Sure, conservative icons like Newt Gingrich and Oliver North have congratulated him for his guts. But you won't hear Pech giving rousing anti-affirmative-action speeches or find him at the head of any Million White-Man March.

He's a "plodder," as he puts it, an ordinary, unassuming, workaday business owner who's spent 25 years building Adarand Constructors, a $5-million guardrail-installation company based in Colorado Springs. He hates public speaking. He even abandoned a possible career as a gym teacher partly because he didn't want to have to talk in front of a class. Yet Pech, a 47-year-old white man, also happens to believe he's a victim of discrimination. And despite his tendency to squirm in the spotlight, he's now a high-profile plaintiff on a key front of the affirmative-action fight.

It was Pech's lawsuit, after all, that prompted the Clinton administration's scramble to "mend, not end" affirmative action in federal contracting. Tired of losing bids on state and federal highway projects to woman- and minority-owned competitors, Pech first filed suit in 1990. Five years later the U.S. Supreme Court heard his case. He thought he'd won a great victory -- at least, that's what everybody (his lawyers, the news media, and his fellow conservatives) said. But despite the ruling, the Clinton administration saw enough leeway in the Court's language to overhaul specific programs while keeping minority contracting fundamentally intact. "They finessed it," scoffs Edward Blum, legal director for the American Civil Rights Institute, a nonprofit in Sacramento that's seeking to end affirmative action. "The Supreme Court left the door open just a crack, and they drove a dump truck through it."

Pech and his lawyers kept pushing, as their case bounced back to Colorado, then up and down through the federal courts. At press time they were scheduled for another Supreme Court hearing on October 31 in what looked like the final round of their 11-year fight. The case, of course, is just one of literally dozens of anti-affirmative-action suits that have clogged the federal courts, seeking to eliminate race-based preferences in everything from school admissions to government hiring. But Pech's suit has emerged as the test case on race preferences in federal contracting -- and one that could end affirmative action in federal contracting once and for all.

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"We didn't get the job because of me? Run that by me again. I thought it was illegal to discriminate because of race."

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Pech's lawyers argue that minority-contracting goals are a worn-out legacy of the civil-rights era, one that violates the Constitution by discriminating on the basis of race. They contend it's time to force the government to pack in those programs and abide by constitutional law. And if Pech's lawyers get their way? Long-standing federal initiatives, like the Small Business Administration's 8(a) program for disadvantaged minority-owned businesses, would have to go. So would minority-contracting goals at the Pentagon, the Department of Transportation, the Environmental Protection Agency, and every other federal agency, along with all federally mandated minority-contracting programs administered through the states.

The dollars at stake are staggering. Last year alone, federal agencies purchased some $13.1 billion in goods and services from minority-owned businesses as part of the effort to meet government contracting goals, according to procurement data from the General Services Administration. And that doesn't include the billions in federal funds for highway and housing construction and toxic-waste cleanup that are funneled through state-run minority-contracting programs.

Supporters of affirmative action say that although those programs have been effective, the results of decades of discrimination against Hispanics, African Americans, and other minorities have yet to be overcome. Eliminate federal contracting goals, they warn, and the doors that have gradually opened to minority businesses will once again slam shut. "It'll go back to a good-old-boy system, where racial minorities are simply cut out," says Julian Bond, chair of the NAACP.

"Randy Pech is attacking and dismantling programs that are desperately needed," echoes Bill Vandenberg, codirector of the Colorado Progressive Coalition. "The civil-rights community continues to fight the good fight, but the walls keep closing in."

At Home at Adarand

Adarand's Colorado Springs offices sit off a flat highway in a zone set aside for heavy industry, with a county correctional facility across the street. Pech's take on what his company does is simple enough: "You drive holes in the ground, buy guardrails, and install them."

Pech, who started Adarand in 1976, seems to get the job done. Today Adarand, with five six-person crews and five post-driver machines, handles roughly 100 guardrail projects a year across the state, with some, such as a recently completed $409,000 job on I-25, north of Monument, Colo., covering as much as 25,000 feet. "With the equipment we have ," says Pech, "there isn't a job in the state of Colorado we wouldn't feel comfortable bidding."