While conservatives were not thrilled with the election of Barack Obama, there was one obvious silver lining. For years, they — and, in fact, the overwhelming majority of all Americans — have opposed racial preferences, a.k.a. “affirmative action.” Surely the election of an African American president would put to rest the notion that America is such a racist society that racial preferences are the only way to level the playing field.
As it turned out, on the same day that Senator Obama was being elected President Obama, the Federal Circuit Court of Appeals took a giant step toward providing equal opportunity, and away from guaranteeing equal results, by striking down an affirmative action program that was enacted by Congress and that mandated racial preferences in government contracting. The Justice Department did not seek Supreme Court review in the case, Rothe Development Corp. v. United States Department of Defense, and so the decision stands — a valuable legal precedent in the continuing struggle against racial preferences.
The program struck down in Rothe was mandated by Congress and required the U.S. Department of Defense, the Coast Guard, the Air Force, and the National Aeronautics and Space Administration to ensure that five percent of all contract dollars be awarded to individuals or businesses designated as “disadvantaged”– and it declared that blacks, Asians, Hispanics, and Native Americans were automatically to be presumed to be disadvantaged.
Of course, if the government gives a preference to some, it will be discriminating against others. Rothe Development Corporation, a San Antonio firm owned by a white woman, was the low bidder on a contract to maintain the computer system at Columbus Air Force base in Mississippi. Instead of awarding Rothe the contract on the basis of her low bid, the government chose a minority (South Korean) contractor — costing the taxpayers over $150,000 more for the same service, by the way. Rothe sued.
After ten years of repeated appeals, on Election Day 2008, the Federal Circuit struck down the program, finding that Congress did not have sufficient evidence to justify such racial preferences.
While the Rothe case challenged a Defense Department program, the court of appeals’ decision is much broader. David Barton, Rothe’s lawyer, points out that the Justice Department itself has acknowledged that the statistical studies Congress used to justify the military’s contracting program are the same ones used by the Small Business Administration for its 8(a) programs and by the U.S. Department of Transportation for its federal highway work. Another contractor could try bringing a challenge to these programs, and they would likely be struck down.
Here’s hoping that this happens, and the sooner the better. The case law is very good now, and the more judges that the new administration appoints, the worse the federal judiciary will be.
Meanwhile, Congress and the Obama administration must now ponder what to do in the wake of the Rothe decision. Clearly, the continued use of racial preferences will face a difficult legal terrain. And as a policy and political matter, such discrimination makes no sense either. There is, in 2009, simply no reason for contracting programs to grant preferences based on skin color.
The Obama administration has promised to eliminate any item in the federal budget that "we don’t need, or that doesn’t work." Well, wasting the taxpayers’ money to advance a racial spoils system is, if anything is, a program that we don’t need and that doesn’t work. One study concluded that racial preferences for highway projects in just one state in just one year were costing its taxpayers up to 6 percent more or about $180 million.
The proponents of preferences will point to statistics that purport to show racial “disparities” in government contracting. Congress, in particular, will be tempted to concoct yet another phony study to prove that disparity equals discrimination equals justification for reverse discrimination.
Such evidence, particularly when presented by those who stand to gain monetarily if the government uses contracting preferences, must be viewed with a high degree of skepticism. And, in any event, a disparity is not necessarily even evidence of discrimination, let alone proof of discrimination. And, even if — through statistical or anecdotal evidence — a pattern of recent discrimination is found, it does not follow that racial preferences must be used to correct it. To the contrary, there are better ways to end such discrimination.
During the Bush administration, the U.S. Department of Justice conceded to the Supreme Court that a federal contracting program “may use race-conscious remedies only as a last resort” and “where the effects of discrimination are stubborn, persistent, and incapable of eradication through race-neutral measures.”
Chief Justice Roberts was right when he wrote a couple of years ago, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” The government can be vigilant against contract discrimination, can require the wide publication of bidding opportunities, and can ensure that the whole contracting process is transparent and open. That is the best way to end contracting discrimination — not by more discrimination against a new set of victims.
Finally, even if there could still, in theory, be a few cases of discrimination that go unremedied in the absence of racial classifications, there will be many more cases of discrimination that will result from the institutionalization of racial preferences.
So there you have it: Contracting programs that discriminate on the basis of race and ethnicity are divisive, unfair, costly to taxpayers — and now, thanks to the Rothe decision, clearly illegal as well.
Postscript: The Washington Post reported late last week that President Obama has “ordered a government-wide review of federal contracting procedures,” and noted the administration’s professed desire, among other things, to save money and end fraud, waste, and abuse. Well, shouldn’t there then be some attention given to racial and ethnic preferences and set-asides, which by definition waste the taxpayers’ money by awarding contracts to those other than the lowest bidder, and which have long been a breeding ground for corruption? And, of course, there is that little matter that the Rothe decision makes clear that these programs are unconstitutional, too.
Otherwise, there will be a proliferation of this kind of discrimination as the stimulus money starts flowing through various government contracting programs, which are honeycombed at the federal, state, and local levels with “goals” or worse for this or that group. Indeed, the new money will push many recipients to the threshold level requiring these discriminatory programs.
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