WASHINGTON -- The Supreme Court yesterday declined to review a federal appeals court ruling upholding the way Utah administers a federal set-aside program for minority contractors.

The program at issue, which is authorized by the Surface Transportation and Uniform Relocation Assistance Act of 1987, requires at least 10% of federal funds provided to states for highway construction to go to small minority-owned businesses.

The program allows states to seek a waiver from the federal Department of Transportation by demonstrating they are making every effort to increase minority participation in road contracts. Utah has never sought a waiver.

However, landscape subcontractor Stephen B. Ellis challenged Utah's administration of the set-aside program in 1987. Ellis, who is white, argued that less than 2% of the firms available for subcontracting work in Utah qualify for set-asides.

He also said that in 1986 and 1988, he submitted the lowest bids on two jobs, but that the work went to minority firms. Ellis asserted that Utah's application of the set-aside program violated the equal protection clause of the Constitution's 14th Amendment, which generally prohibits governments from treating some citizen better than others.

A federal district court dismissed the case, and the U.S. Court of Appeals for the 10th Circuit affirmed the lower court ruling.

Ellis' plea for Supreme Court review centered on the fact that Utah had not demonstrated that a set-aside program was necessary. He said Utah should be required to show that minorities have been discriminated against in highway contract awards before being allowed to implement the program.

But Solicitor General Kenneth W. Starr, in a brief on behalf of the United States, argued that states are to be held to such standards only when setting up their own set-aside programs, not when implementing a federal statute.

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