PLF friend Roger Clegg, President and General Counsel of the Center for Equal Opportunity, has an excellent op-ed in today’s Washington Times. In it he argues that the time has come for the Supreme Court to rein in discrimination in public employment and public contracting. Shelby County was a blow to discrimination in voting. Fisher was a blow to race-based discrimination in admissions. It’s time for the Supreme Court to sound the death knell to race-based discrimination in public employment and contracting. Here’s a snippet:
The fact is that the court has greatly circumscribed the use of race here, too. Unfortunately, that message was not as clearly delivered as it might have been, and it seems to have been lost on employers and contractors. A couple of clarifying decisions would be useful here as well. On Aug. 12, for example, four members of the U.S. Commission on Civil Rights warned the city of Cincinnati against using racial preferences in the city’s contracting. It’s great that this warning was sent, but unfortunate that in 2013 it would have to be.
In government contracting, the court has already established that the use of race will be subjected to strict scrutiny, which means that a “compelling interest” for the discrimination must be identified. The court is unlikely to recognize a compelling interest here other than remedying discrimination since there being no plausible “diversity” interest — that is, no uniquely black perspective, for example, on how to pave a road.
Contracts are not like, say, university admissions, where there is often an irreducible and significant amount of subjectivity in decision-making. Rather, the low-bid process in government contracting can be made very transparent at every step, and this transparency should make it relatively easy to detect and correct any discrimination. This is an area where, as Chief Justice John G. Roberts Jr. famously wrote, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”