Plaintiff challenged a federal policy that offered extra compensation to prime contractors for hiring minority subcontractors.
Race-based classifications must serve a compelling government interest and be narrowly tailored to further said interest.
A prime contractor was selected by the U.S. Department of Transportation for a highway construction project. The contract provided that the prime contractor would receive additional compensation for hiring minority subcontractors. Federal law presumed Black Americans, Hispanic Americans, Native Americans, Asian Pacific Americans, and other minorities were socially and economically disadvantaged individuals which qualified under the provision. The subcontractor that was hired qualified under the provision, but the Plaintiff did not. Plaintiff brought suit, alleging the presumption impermissibly discriminated on the basis of race.
Whether intermediate scrutiny is the correct level of scrutiny for cases involving the federal government and race-based classifications.
No. Intermediate scrutiny is not the correct level of scrutiny for cases involving the federal government and race-based classifications.
This Court assumes there is no difference between decisions that burden versus those that benefit minorities. The consistency that the Court espouses would disregard the difference between a “no trespassing” sign and a welcome mat.
Given this country’s past history of racial discrimination and its practical consequences, Congress should be able to act affirmatively to end discrimination. While I would not disturb the programs challenged in this case, and would leave their improvement to the political branches, I see today’s decision as one that allows our precedent to evolve, still to be informed by and responsive to changing conditions.
Government can never have a compelling interest in discriminating on the basis of race in order to make up for past racial discrimination. To pursue the concept of racial entitlement is to reinforce and preserve for future mischief the way of thinking that produce race slavery, race privilege, and race hatred.
These programs stamp minorities with a badge of inferiority and may cause them to develop dependencies or to adopt an attitude that they are entitled to preferences. Government-sponsored racial discrimination based on benign prejudice is just as noxious as discrimination inspired by malicious prejudice.
In City of Richmond, v. J.A. Croson Company, this Court held race-based classifications must be narrowly tailored and further compelling government interest. Croson, however, did not declare what standard of review is required for such action taken by the federal government. Under today’s decision, there should be no different treatment between claims brought under the Equal Protection Clause of the 14th Amendment and those brought under the Due Process Clause of the 5th Amendment.
We think it best to remand for further consideration in light of the principles we have announced. Whether any of the ways in which the government uses subcontractor compensation clauses can survive strict scrutiny should be addressed in the first instance by the lower courts.