Unfinished business: the Bush Administration and racial preferences.

• Author: Clegg, Roger

INTRODUCTION

To evaluate the Bush Administration's record in opposing preferential treatment on the basis of race, ethnicity, or sex--"affirmative action" (1)--we have to look not only at what it did, but also at what it needed to do. That is, we must first look at how current law requires, encourages, or allows such affirmative discrimination and what steps, ideally, need to be taken to change this situation. After establishing that baseline, we can then measure how close the Bush Administration came to fulfilling this ideal. We cannot judge how far the Administration advanced the ball, particularly in the courts, without knowing where the ball was in the first place.

Unfortunately, the Administration's record is, in short, decidedly mixed. As a general matter, the Bush Administration's record in this area improved on the Clinton Administration's. The latter aggressively encouraged the use of racial preferences; the former's improvement was not so much that it discouraged such use, but that it did nothing. There were some exceptions: Sometimes the Bush Administration continued to accept preferences, and sometimes it actively opposed them. But its savings and sins were principally of omission, not commission.

The Administration said very little about this subject, and when it did say anything, it was because its hand had been forced, such as when the University of Michigan cases, Gratz v. Bollinger (2) and Grutter v. Bollinger, (3) were before the Supreme Court and the topic was unavoidable. It took no position on the Michigan Civil Rights Initiative (4) (which proposed to overturn the Court's decision in Grutter), and it managed to avoid revising the Department of Education's guidelines and regulations in this area, even after the Court had decided Grutter and Gratz. Occasionally the Administration would comment that a pending bill containing a racial preference raised constitutional problems, (5) but it never proposed legislation that would have cut back on such preferences.

Indeed, if the Administration could have avoided saying anything at all about the subject of racial preferences--if it could have simply made the issue go away--it would have done so eagerly. This is probably because, on the one hand, its lawyers and policy advisers thought such discrimination difficult or impossible to defend, but its political experts were reluctant to court attacks from race-baiting Democrats and the civil rights establishment.

The use of racial preferences is concentrated in four areas: voting, government contracting, education, and employment. There are some exceptions (for example, the use of such preferences in appointments to state boards and some aspects of health care), but they are relatively minor.

Voting is a special case. The Voting Rights Act, which is used to require racially gerrymandered districts, (6) has federalized the issue. As a result, there is nothing that the States can do about it. Realistically there was and is nothing to be done through the political branches either. Congress overwhelmingly reauthorized these provisions in 2006, (7) and President Bush signed the bill. (8) Thus, all that can be done for now is to challenge the Act's constitutionality. (9)

The rest of this Essay proceeds seriatim through the other three areas. For each, the status of the law varies, and so do the roles of the federal government, state and local governments, and the private sector. In what follows, the Essay will interweave commentary on what the Bush Administration did along with discussion of what needed to be done (and, alas, still needs to be done).

1. GOVERNMENT CONTRACTING

   The case law regarding government contracting is very favorable to those challenging state and local racial preferences. (10) In 2004, for example, the U.S. District Court for the Southern District of Florida not only struck down a program in Miami, but also held the officials who applied it personally liable. (11) Companies that have lost out on contracts have served as willing plaintiffs, and anti-preference public interest groups, such as the Pacific Legal Foundation and the Mountain States Legal Foundation, among others, have brought many of their cases. (12) Note that in the event of a legal challenge, the state or local government will have to pay its lawyers and expert witnesses; moreover, if it loses (and it will), it will also have to pay the other side's lawyers and expert witnesses. On the other hand, many of these state and local programs still exist, and the Bush Administration did nothing to challenge them.

   The case law is not as favorable with regard to federal contracting preferences, although plaintiffs have also won some cases there. The most important victory was the 1995 decision in Adarand Constructors, Inc. v. Pena, which established that racial preferences in federal contracting would be subject to strict constitutional scrutiny, just as state and local preferences are. (13) In addition, this past November, the Federal Circuit in Rothe Development Corp. v. U.S. Department of Defense struck down an important program setting aside a certain percentage of Department of Defense contracts for minority-owned businesses because it failed the strict scrutiny demanded in Adarand. (14)

   Yet the Bush Administration's record with respect to such federal set-asides was mediocre. It made some marginal improvements in these programs, most importantly with regard to gender (but not racial) preferences in the Small Business Administration's programs, where it required specific showings that discrimination was the cause of any disparities. (15) But it failed to make any kind of principled or systematic revisions.

   In court, the Administration defended those programs when challenged. As noted above, (16) this is to be expected; the executive branch generally feels obliged to defend even programs that it dislikes so long as there are colorable arguments in their favor and so long as they do not compromise the executive branch's own authority. But to the Administration's credit, in at least one case--Western States Paving Co. v. Washington State Department of Transportation--its defense conceded that localized findings of discrimination must be made to satisfy the remedial predicate required by the "compelling interest" prong of strict scrutiny. (17) And in a brief filed in the first year of the Bush Administration, the Department of Justice defended the Department of Transportation's Disadvantaged Business Enterprise program with the concession that state actors "may use race-conscious remedies only as a last resort," that is, "where the effects of discrimination are stubborn, persistent, and incapable of eradication through race-neutral measures." (18)

   Any program that uses classifications and preferences based on race, ethnicity, or sex raises serious constitutional issues. Using racial classifications and setting goals of particular racial percentages inevitably encourage discrimination as a means to meet them, and so these practices should and do trigger strict constitutional scrutiny, (19) Legal issues aside, programs that discriminate on these bases are divisive and unfair, and any system that awards contracts to anyone other than the lowest qualified bidder will cost the government and its taxpayers money.

   So what is needed now is not much different from what was needed when the Bush Administration began and Adarand was, once again, before the Supreme Court: (20) namely, a decision holding that, although remedying discrimination (the only governmental interest advanced for preferences in contracting) is a compelling interest, it is now basically impossible for the use of preferences to be narrowly tailored. Instead, federal programs should be race-blind and race-neutral. To the extent that the government is concerned that racial groups face discrimination in its contracting programs, there are effective responses that do not require racial classifications or preferences.

   To defend their use of racial preferences, governments frequently point to evidence of racial disparities in their contracting. A disparity is not necessarily evidence of discrimination, however, let alone proof. Likewise, much anecdotal evidence is dubious, particularly when those presenting it stand to gain monetarily if the government uses contracting preferences. And most importantly, even if statistical or anecdotal evidence establishes a pattern of recent discrimination, there are better ways to end such discrimination than racial classifications and targets.

   As I testified before the U.S. Commission on Civil Rights on behalf of the Center for Equal Opportunity,

   At every step of the [contracting] process, it is clear that there are more narrowly tailored remedies than using racial preferences. If companies are being excluded from bidding because of unrealistic or irrational bonding or bundling requirements, then those requirements should be changed for all companies, regardless of the skin color of the owner. If companies who could submit bids are not doing so, then the publication and other procedures used in soliciting bids should be opened up--but, again, to all potential bidders, not just some. And, finally, if it can be shown that government bids are being denied to the lowest bidder because of that bidder's race, then there should be put in place safeguards to detect discrimination and sanctions to punish it--but, again, those safeguards and sanctions should protect all companies from racial discrimination, not just some. Contracts are not like hiring, promoting, or even university admissions, where there is an irreducible and significant amount of subjectivity in the decisionmaking. Contracting is an area that can be made very transparent and where this transparency should make it relatively easy to detect and correct discrimination. Even if there could still, in theory, be a few cases of discrimination that go unremedied in the...