September 3, 2013

What about contracting and employment?

By Joshua P. Thompson Senior Attorney

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.”

Read the rest.

 

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