Author: Ralph W. Kasarda
Would the government be correct in arguing that a public contracting scheme that discriminates and grants preferences on the basis of race is not subject to strict scrutiny, if the program discriminates only a little bit?
I recently participated in oral argument before the Fourth Circuit Court of Appeals in PLF's case, H.B. Rowe v Tippett. That case concerns a challenge to the North Carolina Department of Transportation’s Minority and Women Business Enterprise (MWBE) program. The MWBE program treats contractors who bid on state funded highway contracts differently based upon their race. Nonminority male general contractors are "encouraged" to grant preferences to minority and women subcontractors, while discriminating against nonminority male subcontractors. If the nonminority male prime contractors do not meet certain quotas for minority and women subcontractor participation, they must provide evidence that they tried in good faith to meet the quota.
In preparing for oral argument, something in the trial transcripts struck me as odd. The state’s expert witness admitted at trial that the MWBE program does discriminate and grant preferences based on race, but only slightly. In essence, the witness was trying to insinuate to the district court judge that a little race discrimination is no big deal and did not need to be justified. I don't know how much that insinuation played a part in the trial judge's decision, but in a scant order he ruled that the program was constitutional.
Any argument that courts can tolerate and ignore some minimal level of race discrimination is clearly wrong. In Adarand Constructors v. Pena, the Supreme Court proclaimed that "any racial classification" by the government must be subject to the strictest judicial scrutiny In Wygant v. Jackson Board of Education, the Court held that "any preference based on racial or ethnic criteria must necessarily receive a most searching examination." In Regents of the Univ. of Cal. v. Bakke, the Court held that racial and ethnic distinctions of any sort are inherently suspect and thus call for the most exacting judicial examination.
As the Ninth Circuit noted in Monterey Mechanical Co. v. Wilson,there is no de minimis exception to the Equal Protection Clause. "Race discrimination is never a ‘trifle.’" Now, with H.B. Rowe, it's the Fourth Circuit's turn.
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