PRESIDENT CLINTON HAS VOWED that his administration will “mend” affirmative action. Thus, the axing of a $ 1 billion Pentagon set-aside program, announced on October 23, might well be mistaken for a sign of things to come. In reality, administration documents show that Clinton is bent on maintaining racial preference programs.
“The administration was forced to drop the Pentagon program because of pending litigation in New Mexico,” explains Rep. Charles Canady, chairman of the Constitution subcommittee of the House Judiciary Committee. “They had to defend the indefensible or abandon the program. They chose the latter.”
Indeed, shortly before the Pentagon’s announcement, an impatient federal judge in New Mexico had ordered Justice Department lawyers to prepare to defend a Pentagon regulation challenged by McCrossan Construction of Las Cruces. At issue was the “rule of two,” guaranteeing that any Pentagon contract on which two or more minority businesses submitted bids must go to a minority. The 1995 Supreme Court decision in Adarand Constructors v. Pena had struck down a similar racial preference. Faced with the near certainty of losing the suit, the administration folded.
But more important than the demise of the rule of two is the Clinton administration’s decision to keep the rest of the federal minority-contracting system in place. For example, the administration plans to retain the “10 percent bid preference”: Minority-owned companies will win contracts, so long as their bids are no more than 10 percent higher than the best non-minority bid.
“The bid preference is in some respects even worse than the rule of two,” says Kelly Albers, attorney for the plaintiff in the New Mexico suit, “because non-minority companies will expend significant time and energy going through the bidding process but almost always lose in the end because they cannot lower their bid by more than 10 percent and make any profit.” Albers calls the 10 percent preference simply “a more subtle way of ensuring that the minority business still gets the contract.”
Nor is minority contracting the only area where Clinton will retain unconstit utional racial p references. Judith Winston, the top lawyer at the Education Department, recently wrote a letter to all universities and colleges advising that, despite a series of unfavorable court rulings, “race-targeted aid programs” should not be revised. John Schmidt, the number three official at the Justice Department, similarly notified all federal agencies that they may make no changes in affirmative action programs without the department’s approval. In a section of the memo headed “Maintaining the course,” Schmidt wrote, “It is important that you consult with us before your agency takes any action to suspend, eliminate or reform an affirmative action program.'” In another memorandum, Schmidt invited the agencies to help in developing a library of studies, reports, and articles that “can be woven together into an evidentiary mosaic” to defend racial preference programs.
In an even more revealing memo last summer, the administration signaled its intention to subvert Adarand. Assistant Attorney General Walter Dellinger informed all departments and agencies of three litigation strategies the Justice Department will follow in fending off challenges to affirmative action.
First, the department will argue that programs promoting “diversity” are constitutional because diversity makes government activities more successful. Race-based admissions to universities, for example, diversify the student body and thus “enrich the academic experience.” In defending race-based hiring for law enforcement jobs, the department will argue that multiracial police forces are more effective. The same claim will be made to justify hiring quotas in government policy-making jobs and in judicial selections.
The vague notion that diversity is valuable may convince some lower court judges sympathetic to affirmative action, but it will not satisfy a majority of the current Supreme Court. The court has been quite explicit in forbidding racial classifications unless there is a “finding” of a specific constitutional or statutory violation of an actual individual’s civil rights. Since it will take years for new cases to reach the court, however, the administration’s diversity argument may successfully delay the dismantling of racial preferences.
Second, the Justice Department plans to use “disparity studies” extensively in litigation. These studies analyze statistical differences between the minority presence in a given labor market and minority hiring in particular jobs or the success of minorities in winning contracts in that market. When such disparities are significant, they are deemed to establish a prima facie case for discrimination. The Dellinger memo advises federal agencies to accumulate evidence of disparities between the number of available minorities and the number of jobs or contracts minorities receive.
State and local governments have commissioned dozens of disparity studies in the past five years, and these are proving to be potent weapons in the hands of the defenders of racial contracting policies. For example, a study persuaded the Ninth U.S. Circuit Court of Appeals that the city of San Francisco — one of the most militantly anti-discriminatory communities in the world — is racially biased when it awards contracts. The court therefore allowed the city to direct a substantial share of city contract dollars to minority-owned businesses.
This strategy has proven successful for two reasons. First, courts are receptive because disparity studies are sophisticated, lengthy, and written with federal judges in mind; the authors know the terms and phrases the judges want to see. Second, refuting these studies can cost hundreds of thousands of dollars and thus is far beyond the means of most groups and individuals who want to challenge racial preference programs.
Despite their success in court, however, disparity studies should be viewed with skepticism. Researchers know the result they will reach before they begin compiling data. Companies that perform such research learned early on that if they did not find disparities caused by racial discrimination, they would never be hired again. When KPMG Peat Marwick’s disparity study for Miami found no clear evidence of discrimination against blacks or Hispanics, the city commission rejected the research and ordered its own staff to prepare a study with more acceptable results. George LaNoue, a political scientist at the University of Maryland who follows these studies closely, has written that few of them apply “any of the conventional social-science tests to determine validity.”
Third, the Dellinger memo urges agencies to downplay race by making it one of several factors in a decision. Government decisions that “merely use race or et hnicity as one factor to be considered under a program open to all races and et hnic groups’ are more likely to survive challenge, Dellinger advises. A univers ity, for instance, might say that race is only one of several criteria it uses in admissio ns. A contracting official might say that he did not award a contract because of the race of a company’s owners — he merely gave the company a “plus factor” when the final decision was made.
This strategy provides at least temporary cover for maintaining racial preferences. To be sure, the Supreme Court has already ruled against it; the federal program struck down in Adarand gave prime contractors a financial incentive to favor racial minorities in selecting subcontractors. But the $ IAdarand majority was just 5-4 — which keeps hope alive that the court’s composition may change and the pendulum swing back toward racial preferences.
Given the administration’s hostility to ending racial preferences and the court’s narrow margin of opposition to race-based affirmative action, legislation is the only sure way to end racial preferences. Early in 1996, Congress will take up the Dole-Canady bill, which would require the federal government to stop classifying people by race in federal contracting, employment, and programs. Dole-Canady is a good first step toward colorblind public policy. House leaders have been reluctant to schedule action on Dole- Canady this year, but their resolve might stiffen as the election nears. In a promising move, Speaker Gingrich in late October announced his support for the California Civil Rights Initiative, a ballot measure that would ban all racial preferences adopted by that state. Eventually, Congress itself should consider prohibiting racial classifications in state and local government employment and contracting, as well as in public colleges and universities.
Short of such a clear and comprehensive ban, the “mending” that Clinton has embraced will leave government action at all levels riddled with racial preferences.
Linda Chavez is president of the Center for Equal Opportunity, where Daniel Sutherland is a legal scholar.
