Racial Preferences Forever?
Racial Preferences Forever? In October 1983, the J.A. Croson Company, a plumbing and heating contractor, made a winning bid with the city of Richmond, Virginia, on a project involving the...
...In Croson's aftermath, rather than dismantle their presumptively unconstitutional procurement-preference regimes, dozens of state and local jurisdictions have commissioned outfits like National Economic Research Associates to construct a post-hoc rationale for the preservation of preferences...
...In a 1995 case, Adarand v. Pena, the Supreme Court explicitly applied its Croson principles to all contracting by the federal government...
...Interestingly enough, no disparity study has yet identified a single, verified example of contracting discrimination: denial of a public contract to a qualified, low-bidding minority firm...
...in every post-Croson case, the relevant affirmative-action program has been struck down...
...Most such studies also make little if any attempt to limit their inquiry to businesses that are capable of performing a government contract...
...Innumerable federal contracting preferences are authorized by statute...
...Their work reveals that disparity studies typically circumscribe the geographic area in which calculations of minority-business density are made, and then arbitrarily compare the result to procurement expenditures that may be national in scope...
...The business classifications involved are impossibly broad: Vaguely related products and services will be lumped together in billion-dollar stews, and only the very smallest companies will be excluded from the final tabulations...
...The Clinton Commerce Department, it turns out, has for some time now been conducting the grandest disparity-study experiment of them all: a national inquiry into minority business ownership in 80 separate industrial categories...
...Clinton is always indisposed...
...This monster project will prove no less stupid or more constitutionally defensible than any of its local predecessors...
...And, unsurprisingly, no disparity study has yet survived a trial-level constitutional challenge in federal court...
...And the industry-wide procurement "disparities" the Commerce Department eventually identifies will all be imputed to discrimination...
...David Tell, for the Editors...
...Even a limited version of this legislation cannot pass without endorsement by the Republican party's elected leadership...
...In principle and essential practice, nothing will change...
...And from the gap, a salvaging "inference of discriminatory exclusion" is always magically derived...
...Indeed, when it comes to doing it, he does the opposite—preserving or even extending liberal programs, professing all the while that of course he's leading us into a new, post-big-government era...
...Only in the fine print do we discover that these new white 8(a) participants will first have to prove by a preponderance of the evidence that they suffer "chronic racial or ethnic prejudice or cultural bias...
...Proof, say the jurisdictions that purchase these results, that persistent discrimination is sufficient to warrant continued, scattershot group preferences in contracting...
...Where there is a significant statistical disparity between the number of qualified minority contractors willing and able to perform a particular service and the number of such contractors actually engaged by the locality or the locality's prime contractors," O'Connor suggested, "an inference of discriminatory exclusion could arise...
...He has merely to pretend that he agrees with them, and they fall over dead...
...But when it comes to actually doing it, Mr...
...More than Republican vanity and poll numbers are at issue here...
...In 1996, for instance, of 6,000-odd businesses eligible for the Small Business Administration's infamous 8(a) set-aside program, only a couple dozen—0.5 percent—were white-owned...
...Nationwide, about 85 percent of them have no paid employees, and some of the rest (like hairdressing salons) do not sell a product any government would ever buy...
...For several hundred thousand dollars a pop, NERA and its four major competitors in this new niche market will conduct a "disparity study" comparing the percentage of minority-owned businesses in a given area to the percentage of public contracting dollars those businesses win...
...In 1989, the Supreme Court ruled the city's set-aside unconstitutional...
...But one sentence of the Croson opinion gave a glimmer of hope to the hundreds of other states and cities around the country with analogous affirmative-action contracting programs...
...Those laws are unconstitutional...
...Congress is duty-bound to revise or revoke them...
...Heavens no, says Speaker Gingrich...
...Those 45 words have made a handful of American consulting firms very rich...
...But the truth of who buys what from whom and why is not the point of a disparity study...
...Which makes the whole thing one of the largest social- science efforts in history...
...The Justice Department now loudly proclaims that white people will be admitted to 8(a...
...Reform of affirmative action...
...This is the Clinton style, of course...
...Time after time, Republicans have demonstrated that they are helpless before Bill Clinton's verbal pyrotechnics...
...To which disparity researchers add anecdotal evidence from minority business owners who complain—as who would not?—that it's "unfair" their revenues aren't bigger...
...No longer, it claims, will race be a dispositive factor in certain federal procurement decisions...
...Croson Company, a plumbing and heating contractor, made a winning bid with the city of Richmond, Virginia, on a project involving the installation of stainless-steel urinals in the municipal jail...
...House Constitution subcommittee chairman Charles Canady of Florida has sponsored a bill that would perform that mission by eliminating racial preferences in government programs...
...When, then...
...More than 130 such disparity studies have been performed since 1989, at a combined cost of roughly $50 million...
...And only in the fine print does it become plain that what Justice calls further new "limitations" on contracting preferences are in fact an elaborate attempt to maintain those preferences basically as they are...
...Writing for the court in Croson, Justice Sandra Day O'Connor concluded that Richmond hadn't satisfied this test...
...George La Noue and John Sullivan at the University of Maryland, Baltimore, offer a withering analysis of methodological bias in "disparity" research...
...There is almost always a gap...
...Orrin Hatch of Utah will sponsor a similar bill in the Senate...
...Which in each case will trigger a minority "bidding preference" of up to 10 percent on any procurement job—enough to make most such jobs unprofitable for non-minority contractors...
...Cro-son then sued Richmond...
...Where is the Republican party, proud defender of individual rights and colorblind constitutionalism, sworn enemy of race preferences...
...But with the notable exception of California, whose voters last year passed a state constitutional amendment banning reverse discrimination, most jurisdictions across the country still refuse to heed the Supreme Court's intention...
...The president concedes conservative philosophy at the level of sound-bite rhetoric...
...The racial and ethnic classification involved is also impossibly broad: Minority businesses will be considered as a whole, and no attempt will be made to disaggregate contracting for black businesses, Hispanic businesses, or anyone else...
...High-dollar public- works contracts tend naturally to go to large companies...
...Anyone...
...They are giving up their contracting preferences one by one, and only when legally ordered to do so...
...All of which once again raises an embarrassing question...
...Eureka...
...Two years later, last week, the Clinton administration finally announced that it will obey the Constitution...
...A month later, city officials declared the company "unresponsive" and reopened the bidding because Croson had been unable to find a minority-owned subcontractor qualified to supply the toilets, as required by Richmond's hard-and-fast 30 percent construction procurement "set-aside...
...its set-aside was a broad-brush racial spoils system the city had never justified with reference to any set of facts...
...How 'bout it, Newt...
...He wants to "mend" affirmative action and banish reverse discrimination, he says...
...Not yet...
...The point is to manipulate a lot of complicated data to produce an apparent deficit in minority contracting...
...Trent...
...No state or local government, the court decided, may consider race, ethnicity, or gender in public contracting unless it demonstrates that the present effects of past discrimination against certain groups—all clearly identified—make remedial preferences for those groups appropriate...
...Minority-owned companies, for many reasons that have nothing to do with recent discrimination, tend not to be large...
...President Clinton is doing this, too, with a $200 billion annual procurement budget heavily barnacled with much the same kind of group preferences that sank Richmond's toilet scheme...
...And what a lot of crap it is...
Vol. 2 • May 1997 • No. 35
