The Washington Examiner: States should follow federal government’s lead in waiving racial preferences in contracting, then end them for good

As the coronavirus pandemic rages, the federal government has suspended numerous regulations in order to alleviate burdens on companies performing much-needed work during the crisis and in hopes of boosting the struggling economy.

But suspending regulations in response to the crisis also underscores the reality that a great many of these rules are unnecessary and counterproductive in the first place and need to be thrown out entirely. A good place to start is with ending affirmative action requirements in government construction contracts, which have been proven to be a source of discrimination and corruption.

The Labor Department, for instance, has suspended some of its affirmative action requirements in federal construction until June. It’s time for state and local governments to follow suit and then put an end to these race-based contracting rules for good.

Minority Business Enterprise programs exist in New York, Chicago, and elsewhere all across the country. These programs often require contractors applying to work on public projects to set aside a certain percentage of the project to be subcontracted to minority-owned businesses.

If the government believes a contractor failed to demonstrate sufficient efforts to meet the percentage goals, the government can impose onerous fines on the contractor or even ban them from public contracting altogether. Although sold as a means to increase minority participation in contracting, MBE programs tilt the playing field based on race to the detriment of everyone involved.

Government contractors risk ruinous penalties if they are unable to meet the government’s racial goals. As a result, contractors may well choose less qualified and more expensive subcontractors to perform work, all in the name of compliance with the MBE regulations. In other words, MBE requirements, which are touted by proponents as anti-discrimination tools, actually require individuals to discriminate against others based on race.

MBE programs harm minority contractors as well, by calling into question their hard-earned achievements. Many of these contractors very well may have been the most qualified to perform work without the MBE requirements. Yet, the mere existence of such requirements blurs the line between MBEs that obtained work merely because of a set-aside and MBEs that received work because they were the most qualified for the job.

Some minority contractors have offered testimony as to how their firms were used as “window-dressing” to secure public contracts, before being cast aside when it came time to do the work. Lorenzo Harmon, who operates a minority-owned trucking company in Chicago, reported that another contractor told him he would be “the minority on the job to do the small paving.” Afterward, that contractor fired Harmon’s company. “They used me to get the contract,” Harmon recounts, and “then they turned around and threw me to the dogs.”

MBE programs are not only unjust, but they are also unconstitutional. The 14th Amendment promises every U.S. citizen “equal protection of the laws.” As the U.S. Supreme Court reiterated when striking down a racial set-aside in contracting over 30 years ago, racial preferences “may only reinforce common stereotypes holding that certain groups are unable to achieve success without special protection based on a factor having no relation to individual worth.”

The best contractors generate substantial value for all U.S. citizens. They pave roads, build fire stations, and refurbish local schools, to name a few examples. A country that distributes opportunities based on the quality of a person’s work, rather than the color of her skin, is a more just and more prosperous one.

We will eventually emerge from this coronavirus crisis, and putting the public back to work will require serious rethinking of previous arrangements. Cities and states will have the opportunity to start anew by following the Labor Department’s lead and eliminating affirmative action programs that make it harder for U.S. citizens to work. Hiring contractors who are most qualified to perform the work based on their merit, not on their race, will be a win for the economy and for the constitutional principle of equality under the law.

Wen Fa is an attorney at Pacific Legal Foundation, which litigates nationwide to achieve court victories enforcing the Constitution’s guarantee of individual liberty and, amid the current pandemic crisis, restoring freedoms necessary to rebuild America.

This op-ed was originally published by The Washington Examiner on May 4, 2020.