Revisiting class-based affirmative action in government contracting.

• Author: Reece, Jarrod D.

1. INTRODUCTION

   "Unlike a private buyer, the government is interested, as the sovereign, in achieving a wide variety of social and economic goals." (1) Indeed, government contracting has been a means of effectuating socioeconomic policy in the United States for nearly half of a century. (2) But these sorts of programs, particularly those that classify based on race, are extremely controversial (3) and face a variety of legal challenges. The Supreme Court of the United States has severely limited the contexts in which race-based affirmative action may be used, (4) and five states--California, Washington, Michigan, Nebraska, and Arizona--have banned such programs by ballot initiative. (5) Despite this backdrop, government contracting can still be used to further socioeconomic policy, but to do so, the focus must move away from race. Politicians across the country have recognized this and are looking for ways to continue affirmative action-like contracting programs that comport with the developing law. (6)

   This Note focuses on existing class-based alternatives to race-based affirmative action in government contracting. Part II describes the history of affirmative action, (7) the state-by-state anti-affirmative action movement, (8) and the theory of class-based affirmative action. (9) Then, three existing programs intended to encourage job development in disadvantaged areas through government contracting will be described, analyzed, and assessed to demonstrate the myriad ways of structuring such a program. (10) Part III synthesizes this analysis, the literature analyzing the effect of these programs, and the theories behind class-based affirmative action into recommendations for public policy makers who wish to continue to use government contracting as a means of impacting socioeconomic policy in the face of the anti-affirmative action movement. (11) This Note is not, however, intended to give due consideration to state-by-state peculiarities such as the differences in state and local contracting law, (12) state constitutional law, (13) and variations in voter approval of government preferences, although these are essential concerns that public policy makers should bear in mind.

2. THE HISTORY, THEORY, AND STATUTORY EMBODIMENT OF CLASS-BASED AFFIRMATIVE ACTION

   1. The Evolving Status of Race-Based Affirmative Action

      President John F. Kennedy brought affirmative action programs to the forefront when he issued an executive order requiring that contractors of the federal government "take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin." (14) This required federal contractors to do more than prohibit discrimination in their businesses; it required active attempts to encourage the employment of minorities. (15) Since then, affirmative action has been incorporated into a variety of social programs outside of government contracting, including education and government employment. (16)

      Even a casual observer of American politics will recognize that affirmative action is "one of the most controversial and divisive issues ever placed on the national agenda in the United States." (17) The matter has been contentious from the beginning (18) and remains so to this day. (19) Many opponents of affirmative action label it "reverse discrimination." (20) The power of this critique is exemplified by a "reverse discrimination" case (21) being one of the most significant issues in the recent confirmation of Justice Sonia Sotomayor to the Supreme Court of the United States. (22)

      As the public has struggled with the policy rationales underlying affirmative action, the Supreme Court has struggled with how such programs comport with equal protection jurisprudence. (23) After a period of doctrinal development, (24) the Supreme Court now applies strict scrutiny to any government classification based on race, including race-based affirmative action. (25) Meanwhile, a group of committed opponents of affirmative action has succeeded in persuading the voters in the states of California, Washington, Michigan, Nebraska, and Arizona to ban such programs by ballot initiative. (26) As will be seen, affirmative action has literally become illegal "[w]ithout a [c]ase" (27) in the states where these ballot initiatives have passed.

   2. Ward Connerly and The Modern Anti-Affirmative Action Movement

      Today, the "the most high-profile crusader against affirmative action" is Ward Connerly. (28) Connerly was a member of the University of California Board of Regents, where he successfully led an initiative to ban the University's use of race in admissions. (29) He is the founder and president of the American Civil Rights Institute, which describes itself as "a national, not-for-profit organization aimed at educating the public about the need to move beyond race and, specifically, racial and gender preferences." (30) Connerly has successfully led ballot initiatives in five states to end race-based affirmative action. (31)

      Connerly believes that "the Supreme Court's politically correct decisions" have made "Congress and state legislatures ... reluctant to take the necessary steps to enforce the Civil Rights Act or to remove 'affirmative action' programs granting preferential treatment on the basis of race, sex, color, ethnicity, or national origin." (32) He also believes that blacks "have become addicted" to affirmative action. (33) He frames his views not as opposition to affirmative action, which is an "amorphous term" that "means different things to different people," but rather as opposition to discrimination. (34) This explanation of his beliefs has led some who support affirmative action, including people who have benefited from it, to sign Connerly's petitions, leaving them to later realize that they would not have signed the petitions had they understood the implication of their signatures. (35) A federal court found that Connerly's tactics in one state amounted to "systematic voter fraud by telling voters that they were signing a petition supporting affirmative action," but the court ultimately found no violation of federal law because Connerly's organization "appears to have targeted all ... voters for deception without regard to race." (36)

      Connerly began his movement in California, (37) where in 1996, 54.55% of voters (38) approved a constitutional amendment requiring that the state "not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting." (39) The ballot initiative, Proposition 209, was followed and debated nationally, with both President Bill Clinton and then-presidential candidate Bob Dole taking public positions. (40) For his influential role in passing this ban, a Republican fundraising group labeled Connerly "the greatest hero of the 1996 elections." (41)

      Opponents of Proposition 209 challenged its validity under the Equal Protection Clause and Title VII. (42) A federal district court judge entered a preliminary injunction barring the implementation of Proposition 209 based on the likelihood of the challenge's success on the merits. (43) Ultimately, the United States Court of Appeals for the Ninth Circuit found that the amendment was constitutional and that Title VII did not preempt the amendment, so the preliminary injunction was vacated. (44) Subsequent challenges to these state bans on affirmative action have failed without exception. (45)

      Connerly's decision to next target the state of Washington surprised many observers. (46) The state had a history of electing minorities to important positions and had some of the "most inclusive" preference programs, even preferring white men in certain contexts. (47) Before Connerly signed on to the Washington movement, the organization leading it was "foundering" to achieve the 180,000 signatures needed to place the issue on the ballot. (48) After Connerly's American Civil Rights Initiative donated more than $178,000 and lent its support, the requisite signatures were gathered. (49) The measure, Initiative 200, ultimately passed with 58% of the vote. (50) The significance of Connerly's involvement with such a movement was becoming increasingly clear. (51)

      The next stop for Connerly was Michigan, where he tapped into the controversy surrounding Gratz v. Bollinger (52) and Grutter v. Bollinger, (53) two Supreme Court cases that further defined the permissible bounds of affirmative action through challenges to the admissions processes at the University of Michigan. Jennifer Gratz herself led the effort with assistance from Connerly. (54) Support for this measure was thought to be high because of the tough economic conditions in Michigan, which was plagued with "high unemployment, high migration of young people and a wrenching transition away from manufacturing." (55) The media reported that voters who felt that the measure would have a negative economic impact for their race in particular would be less supportive of race-conscious measures. (56) Against this backdrop of Supreme Court cases, racial tension, and a struggling economy, Proposal 2 passed with 58% of the vote. (57) Although this initiative was challenged in federal court, it was ultimately upheld. (58)

      In 2008, Connerly targeted Nebraska, where a similar ban passed with over (57) % of the vote. (59) In response to fraud allegations similar to those raised in Michigan, Connerly contended that "any fraud was isolated and shouldn't affect the vote." (60) These fraud-based challenges suffered the same fate as the challenges in Michigan (61) and California (62) and were rejected by the courts. (63)

      Despite his success in Nebraska in 2008, that year also generated Connerly's first noteworthy failures in his movement to ban affirmative action by...