- The Washington Times - Sunday, May 18, 2003

Last Wednesday, the Bush administration sent to Congress its proposed reauthorization of the federal highway bill, with the ungainly title of the Safe, Accountable, Flexible and Efficient Transportation Equity Act of 2003 (SAFETEA). Unfortunately, among the things it reauthorizes is the use of contracting and subcontracting preferences based on race, ethnicity and sex.

The offending provision is Section 1811, which states the general rule that “not less than 10 percent of the amounts made available for any program ? shall be expended with small business concerns owned and controlled by socially and economically disadvantaged individuals.” Elsewhere, the bill makes clear that it “shall [be] presume• that socially and economically disadvantaged individuals include Black Americans, Hispanic Americans, Asian Pacific Americans, and other minorities,” and also that “women shall be presumed to be socially and economically disadvantaged individuals.”

Thus, in America in 2003, we will presume that everyone is socially and economically disadvantaged except for white males. Everyone gets a bidding preference except for white males.

How can such blatant discrimination be justified? It cannot. There are plenty of white men who are socially and economically disadvantaged, and there are plenty of minorities and women who aren’t. There is no reason — certainly no “compelling” reason, which is the legal standard under the Constitution that the Supreme Court says must be met — for the federal government to presume to the contrary, rather than simply treating individuals as individuals.

The Bush administration knows this, and the lawyers at the Justice Department and elsewhere in the administration explained this to the White House, but they were ignored. This is scandalous. When the president deliberately acts unconstitutionally, that is a scandal.

The president himself, and the Justice Department, are now arguing to the Supreme Court in the University of Michigan cases that it is unconstitutional for the government to use racial and ethnic preferences when there are race-neutral alternatives available. For government contracting, even more than for university admissions, there are obviously such alternatives.

If the administration wants to provide “affirmative access” — the president’s favorite phrase — the government might, for instance, grant preferences based on a company’s small size, or the fact that it is brand new. If the government’s aim is to combat discrimination, there is plenty that it can do to make sure that the contracting process is bias-free. There is simply no plausible argument that the only way to ensure that minorities and women are not discriminated against is to discriminate against everyone who is not a minority or a woman.

The only hope is that perhaps the administration intends for Section 1811 to be merely a placeholder until several pending court decisions are handed down, after which it fully expects to revisit this issue in earnest. A pair of cases are now before the U.S. Court of Appeals for the 8th Circuit challenging the current version of Section 1811. In addition, the issue of racial and ethnic preferences is also before the U.S. Supreme Court in the University of Michigan cases, and it is quite possible that those decisions might also have some bearing on the permissibility of such preferences in the contracting area.

Thus, the administration’s section-by-section analysis says this about Section 1811: “This proposal is made in recognition of the fact that two cases addressing this provision are currently pending in the Federal courts of appeals, along with other cases addressing related issues up to the level of the Supreme Court. The [administration] will continue to monitor developments in this area, and will be prepared to propose appropriate legislative changes or to make any appropriate adjustments in the administration of this program in light of clarification by the courts of the constitutional parameters for such programs.”

I certainly hope that this is the administration’s plan. But no matter how these court decisions come out, they will not say that contracting preferences are required; the most they would say is that they are permitted. So, if the Bush administration believes that discrimination based on race, ethnicity and sex is a bad idea, there was nothing to stop it from taking it out of SAFETEA. So, why didn’t it?

If neither law nor principle is on the administration’s side, it must have been motivated by politics. But this explanation is hard to believe, too. Preferences based on race, ethnicity and sex are overwhelmingly unpopular with most Americans, of every hue and gender. The few who embrace them will never vote Republican anyway. Most members of the president’s party in the House and Senate understand this. In 1998, when the federal highway bill was last reauthorized, they voted in favor of taking these preferences out of the legislation. Even some Democrats agreed.

What is President Bush thinking of?

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

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