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From Terry Frieden
CNN Washington Bureau

WASHINGTON (CNN) -- The Bush administration late Friday asked the U.S. Supreme Court to uphold affirmative action rules designed to help minority-owned businesses win federal government contracts.

Justice Department lawyers, acting after the Supreme Court had closed for the day, filed a legal brief defending Transportation Department regulations that many critics, including several prominent Bush supporters, say represent reverse discrimination.

"They serve a compelling government purpose and are narrowly tailored to achieve that end," the government document said.

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The Bush administration defends the constitutionality of the preference program because it is "aimed at redressing the effects of discrimination" and "ensure a level playing field."

Attorney General John Ashcroft's conservative solicitor general and the brief's author, Theodore Olson, is expected to defend the government's affirmative action program against Adarand Constructors, which won an earlier affirmative action case before the Supreme Court.

Adarand, a white-owned firm, argued in the 1995 case that it was discriminated against when a Hispanic-owned company won the rights to undertake a highway building project -- even though that company had submitted a higher bid.

The Supreme Court's ruling in that case sharply curtailed affirmative action programs. By a 5-4 vote, the majority ruled that affirmative action programs had to be designed "to meet a compelling government interest."

The Clinton administration, saying it wanted to "mend, not end affirmative action," then issued new regulations.

The rules call for at least 10 percent of contracts to go to minority-owned and run companies.

The outgoing Clinton administration called those levels "aspirational goals," not "mandatory participation requirements."

On the last full day of the Clinton presidency -- January 19, 2001 -- the outgoing administration filed documents with the Supreme Court defending the revised affirmative action program.

Lawyers for then-Attorney General Janet Reno argued the Supreme Court should not hear an appeal by Adarand regarding the new affirmative policies, claiming the revised rules do not reflect mandatory quotas.

But the Supreme Court was unpersuaded and agreed to consider the case. It takes the votes of only four Justices to agree to hear an appeal.

Switching sides would be difficult

Legal experts say that, as a practical matter, it is difficult, though not unprecedented, for a new administration to switch sides in an ongoing case.

Nonetheless some conservatives said the Bush administration should have reversed the government's position.

"This is a strict racial preference program, and I find it devastating that the Bush administration would support this kind of racial preference," said Linda Chavez, head of an organization opposed to affirmative action.

But supporters of such programs say Ashcroft promised to defend federal laws whether he likes them or not, and they expect him to do so.

"This program is the law of the land. We are looking very closely to see if it is enforced," said Hilary Shelton of the NAACP.

Justice Department officials Friday night said the Bush administration will fight for the existing affirmative action regulations in court.

"Attorney General Ashcroft said when he was confirmed that where there's a good faith argument that can be made for an existing law, it will be made," Justice Department spokesperson Mindy Tucker said.

The Supreme Court is expected to hear the case this year, possibly as early as November.

A pair of contentious affirmative action cases involving preferences in higher-education admissions appear headed for the Supreme Court within the next year.

Those cases, involving programs at the University of Michigan, are before lower federal courts, and legal experts say they may present the Bush administration with an opportunity to signal limits to its support for affirmative action.