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CLEGG: Moving beyond legal discrimination

- - Sunday, September 1, 2013

Racial preferences no longer serve a need

Fifty years ago, the Rev. Martin Luther King Jr. expressed his dream that his children not be judged by "the color of their skin," but his vision is not yet a reality. Racial preferences are still used in four principal areas: employment, contracting, education and voting.

The Supreme Court has recently handed down important decisions in the latter two categories. In Fisher v. University of Texas, it has ruled that the scrutiny given to racial preferences in university admissions must indeed be strict. In Shelby County v. Holder, it struck down the coverage formula used by Section 5 of the Voting Rights Act, the principal use of which has been to require the creation of majority-minority voting districts. These are good decisions that will, one hopes, greatly curtail the use of race-based decision-making in these two areas. The court will also be hearing oral arguments in a case early in the fall term that raises again the issue of racial preferences in university admissions.

What about employment and contracting?

The fact is that the court has greatly circumscribed the use of race here, too. Unfortunately, that message was not as clearly delivered as it might have been, and it seems to have been lost on employers and contractors. A couple of clarifying decisions would be useful here as well. On Aug. 12, for example, four members of the U.S. Commission on Civil Rights warned the city of Cincinnati against using racial preferences in the city's contracting. It's great that this warning was sent, but unfortunate that in 2013 it would have to be.

In government contracting, the court has already established that the use of race will be subjected to strict scrutiny, which means that a "compelling interest" for the discrimination must be identified. The court is unlikely to recognize a compelling interest here other than remedying discrimination since there being no plausible "diversity" interest — that is, no uniquely black perspective, for example, on how to pave a road.

Contracts are not like, say, university admissions, where there is often an irreducible and significant amount of subjectivity in decision-making. Rather, the low-bid process in government contracting can be made very transparent at every step, and this transparency should make it relatively easy to detect and correct any discrimination. This is an area where, as Chief Justice John G. Roberts Jr. famously wrote, "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."

The narrowly tailored way to remedy discrimination in the award of government contracts, then, should never involve preferential treatment. This is very much in line with the court's opinion in Fisher, which stressed that racial preferences may be used only as a last resort.

As for employment, many corporations today declare that they "celebrate diversity," but corporate lawyers ought to know that hiring and promoting is like contracting in that the court has never recognized a "diversity" rationale for discrimination. Nor is it likely to do so, since the key federal statute, Title VII of the 1964 Civil Rights Act, not only has a flat ban on discrimination but explicitly allows no "bona fide occupational qualification" for race.

Once again, anyone using preferences must meet a remedial predicate, showing a "manifest imbalance" in a "traditionally segregated" position, as the court ruled in its Weber and Johnson decisions that allowed some use of racial preferences under Title VII. One hopes that 49 years after the 1964 Act made other employment discrimination illegal, there is not much "traditional segregation" left, especially at companies that have been celebrating diversity for years by cheerfully discriminating in favor of "underrepresented" minorities.

The court's 2009 decision in Ricci v. DeStefano — the New Haven firefighters case — further suggests that an employer's track record of discrimination against, say, Hispanics must be so bad and so recent that if it did not provide a preference, there is a "strong basis in evidence" that it could be successfully sued for that failure. That's a very high bar.

Indeed, the time has come for the court to overturn Weber and Johnson, since those much-criticized and unstable opinions also held that preferences cannot "unnecessarily trammel" the interests of nonpreferred employees. In 2013, there will never be a situation where the "necessary" way to fight discrimination is through more discrimination, rather than simply stopping discrimination.

To their credit, the people is a number of states have not waited for the Supreme Court but have themselves put an end to politically correct discrimination in public contracting and employment by ballot initiatives. There should be action at the municipal level, too. Note that Hispanics are increasingly likely to be discriminated against by public contracting programs, just as Asian Americans are by university admissions.

To their shame, the Obama administration and Congress have continued to support employment and, especially, contract discrimination. If a House bill ending the federal government's own contracting discrimination, in particular, could not get through the Senate and the Oval Office, a representative could at least ask the Government Accountability Office to calculate how much these programs are costing the taxpayers. GAO could also help document the corruption in these programs, and how widespread they are at the state and local level.

We've made some progress this year against race-based discrimination in education and redistricting. Here's hoping we make some in contracting and employment, too.

Roger Clegg is president and general counsel of the Center for Equal Opportunity.