The disappointing decision by the Ninth Circuit yesterday in AGC San Diego v California Department of Transportation (Caltrans) means that Caltrans can continue its policy of multiracial discrimination.
Caltrans imposes a one-size-fits-all racial preference on all federally assisted transportation construction and engineering contracts statewide. Such a preference is unconstitutional because it can never be narrowly tailored on both construction and engineering contracts in such a large and diverse state as California. Currently the program makes prime contractors discriminate again male subcontractors who are South Asian or white. For instance prime contractors must favor subcontractors who trace their heritage to China, Japan, or South America, but disfavor male subcontractors whose national origins are from Pakistan, India, Bangladesh, Maldives, Nepal, and Sri Lanka.
The Caltrans program offends all notions of equality and fairness. Subcontractors who are not of Caltrans’ chosen races or ethnicities are denied equal opportunity. Caltrans believes it must discriminate to balance out its massed statistical disparities. But as Chief Justice Roberts of the United States Supreme Court said: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”