Model Racial Preferences Brief

The Pacific Legal Foundation‘s Sharon Browne and the Center for Equal Opportunity‘s Roger Clegg have created a model brief (31 pages PDF) for contractors and subcontractors who’ve been shut out of government contracts because of racial preferences.

Preferences proponents typically cite sentiment over the law to justify government discrimination. Black American’s ancestors were slaves, and blacks still living today were oppressed under Jim Crow. Until the “playing field” is level, they argue, the government should be allowed to consider race a hiring, contracting, and admissions qualification, as long as preferred minorities are not on the negative end of the discrimination.

The law is clear on the government’s use of race. It violates the Equal Protection Clause, which mandates that no state shall deny any person within its jurisdiction equal protection of the laws. It protects the rights of the individual, and racial classifications are group classifications. The question becomes, has the personal right to equal protection been infringed by the particular law? Race-based government action, therefore, receives the highest scrutiny by the judicial system. If the race-based measure is narrowly tailored to further a compelling government interest, it’s deemed constitutional.

Browne and Clegg outline the most important arguments against government racial preferences. An excerpt:

RACIAL CLASSIFICATIONS ARE PRESUMPTIVELY UNCONSTITUTIONAL UNDER THE EQUAL PROTECTION CLAUSE AND MUST BE SUBJECTED TO THE STRICTEST JUDICIAL SCRUTINY

[This section can be shortened based upon the knowledge and experience of the court.]

Decisions of the United States Supreme Court have made clear that distinctions between persons based solely upon their ancestry “are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality.” Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 214 (1995) (quoting Hirabayashi v. United States, 320 U.S. 81, 100 (1943)). All racial classifications by government are “inherently suspect,” id. at 223, and “presumptively invalid.” Shaw v. Reno, 509 U.S. 630, 643-44 (1993). Accordingly, the core purpose of the Equal Protection Clause is to eliminate governmentally sanctioned racial distinctions. City of Richmond v. J.A. Croson Co., 488 U.S. 469, 495 (1989).

Where the government proposes to ensure participation of “some specified percentage of a particular group merely  because of its race or ethnic origin, such a preferential purpose must be rejected . . . as facially invalid. Preferring members of any one group for no reason other than race or ethnic origin is discrimination for its own sake. This the Constitution forbids.” Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 307 (1978).

All governmental action based on explicit racial classifications are subject to strict scrutiny to ensure that the personal right to equal protection has not been infringed. Adarand, 515 U.S. at 227. Thus, before resorting to a race-conscious measure, the government must “identify [the] discrimination [to be remedied], public or private, with some specificity,” and must have a “strong basis in evidence” upon which “to conclude that remedial action [is] necessary.” Croson, 488 U.S. 8 at 500. And even where there is a compelling interest supported by a strong basis in evidence, the program must be narrowly tailored to further that interest. Id. at 506; Adarand, 515 U.S. at 238-39. Moreover, the Supreme Court does not single out hard quotas and set-asides for strict scrutiny. The Court refers generally to any racial classification, and any racially defined goal or target.