Another Threat to Affirmative Action
Americans for a Fair Chance - August 2005
The U.S. Commission on Civil Rights' 2005 Report: "Federal Procurement After Adarand"
Americans for a Fair Chance (AFC)1, a project of the Leadership Conference on Civil Rights Education Fund (LCCREF), is focused on educating the public about the importance of affirmative action and other programs aimed at expanding equal opportunity and preventing discrimination.LCCREF is the education arm of its sister organization the Leadership Conference on Civil Rights (LCCR), the country’s largest and most diverse civil and human rights coalition. As partners of the AFC project, we are concerned about the U.S. Commission on Civil Rights’ report on affirmative action and federal procurement. Affirmative action programs include efforts to encourage the awarding of government contracts to qualified women and minority-owned businesses that have been discriminated against in the past. While affirmative action policies and programs have improved the success of women and minority-owned business enterprises, these businesses still receive only a fraction of total federal and state contracting dollars.
The Commission’s report, "Federal Procurement After Adarand," purports to recommend methods by which federal procurement agencies can enforce the law in a manner that is consistent with the Supreme Court’s 1995 decision in Adarand Constructors, Inc. v. Pena.2 As in the 2004 report of the U.S. Department of Education, the Commission ignores the Court’s reasoned and careful decision in Grutter v. Bollinger, handed down in 2003, that diversity is a compelling state interest that permits the use of race as one of many other factors.3 Instead, the Commission goes to great lengths to raise the threshold for legally acceptable race-conscious programs. The Commission is recommending that agencies take extraordinarily burdensome steps both to implement and measure race-neutral programs and to justify race-conscious ones, notwithstanding the often well-documented history of discrimination that gave rise to such programs.
In Adarand v. Pena, the Supreme Court applied strict scrutiny, the highest standard of judicial review, to "racial classifications." In Grutter v. Bollinger, the Court held that student body diversity constituted a compelling governmental interest. Government programs must be narrowly tailored to meet that interest. Under the narrow tailoring standard, the government must consider race neutral alternatives before undertaking race-conscious measures. In the Grutter case, the Supreme Court observed that the University of Michigan had considered race neutral alternatives, but the Court disagreed with the Bush Administration’s argument that the so-called race-neutral Texas, Florida and California programs were the correct approach to narrow tailoring. Further, in Grutter, the Court did not require the University to employ race-neutral alternatives as an antecedent to pursuing student body diversity; only to consider such alternatives.
Summary of Main Points from the Commission's Report
The Commission recommends that agencies engage in numerous steps in order to evaluate race-neutral and race-conscious programs:
- Standards: Agencies must develop policy, procedures and statistical standards for evaluating race-neutral alternatives.
- Implementation: Agencies must develop or identify a wide range of race-neutral approaches, rather than relying on only one or two generic government-wide programs;
- Evaluation: Agencies must measure the effectiveness of their chosen procurement strategies based on established empirical standards and benchmarks.
- Communication: Agencies should communicate and coordinate race-neural practices to ensure maximum efficiency and consistency government-wide.
Recommended race-neutral contracting strategies:
- Antidiscrimination Policies and Enforcement. The Commission found little enforcement of antidiscrimination laws in contracting.
- Outreach to limit the need for and use of race-conscious measures.
- Capacity building. Technical assistance, mentor-protégé programs and similar teaming efforts.
- Financial assistance to help small business overcome monetary barriers to competing for contracts.
- Expanding contracting opportunities. Making available more small contracts by "unbundling" large contracts or promoting business development in underutilized geographic regions.
The Commission’s Conclusion:
- The Commission concludes that federal agencies have failed to consider race-neutral alternatives in the manner contemplated by the Court in Adarand. "Many draw upon SBA-run programs designed to promote procurement with small and minority-owned businesses, rather than developing new programs and conducting their own analysis."
- Although agencies engage in a few race-neutral strategies, they do not exert the effort associated with the "serious consideration that the Equal Protection Clause requires."
The Commission's Recommendations:
- The Commission recommends that Congress enact legislation expressly prohibiting discrimination based on race, sex, religion, color, national origin, age and disability in federal contracting and procurement, including subcontracting.
- The Commission recommends that DOJ and SBA facilitate agency development and implementation of "prominent" civil rights enforcement and compliance review policies for contracting, including a means for identifying victims.
- The Commission recommends that agencies adopt and follow guidelines to ensure serious consideration of race-neutral alternatives.
- The Commission recommends that the White House convene a task force to determine what data Congress, DOJ and agencies need to properly implement narrow tailoring in contracting and assess (1) whether race-conscious programs are still necessary and (2) the extent to which race-neutral alternatives are effective. Data should facilitate analyses of causal relationships and relate to the effectiveness of agencies’ race-conscious or neutral programs. The task force report should be submitted to the Congress by March 2007.
- The Commission recommends that agencies must engage in regular, systematic reviews of race-conscious programs, including those that presume "race-based disadvantage."
- The Commission recommends that agencies should measure the success of race-neutral strategies independently so that they can determine the viability of these policies as alternatives to race-conscious measures.
The Commission's Standard of Review
The Commission attempts to define the level of review in a much more stringent fashion and at a level of scrutiny never contemplated in Adarand and Grutter. The following are examples of some concerns LCCREF/AFC has with regard to the Commission’s standard for level of review:
- The Commission states that agencies must now make "serious" efforts to consider race-neutral strategies before adopting any that allow eligibility based, even in part, on race.
- According to the Commission, "serious consideration" entails:
- Developing policy, procedures and standards for the basic assumptions that guide empirical evidence demonstrating the need for specific contracting initiatives.
- Developing or identifying a variety of race-neutral approaches and implementing programs based on identified needs as determined by baseline data. (Emphasis added)
- Continuously reviewing the need for race-conscious programs and independently measuring the success of race-neutral strategies.
- Engaging in regular interagency communication to foster information-sharing and identify best practices and workable race-neutral strategies.
The Commission argues that Adarand requires agencies to consider and employ race-neutral strategies before resorting to race-conscious ones. However, Adarand, as amplified by Grutter, does not require agencies to engage in an exhaustive analysis and application of such programs before they adopt race-conscious ones.
Unlike the standard set forth by Justice Sandra Day O’Connor in Adarand, this so-called "serious level of review" is fatally flawed and "fatal in fact":
- The report acknowledges that the six factors courts have identified to assess whether a program is narrowly tailored include "whether race-neutral alternatives were first considered and determined to be insufficient solutions." That does not mean that such alternatives had to be employed before they were discarded for more race-conscious alternatives, however.
- The report does not address the existence of disparity studies or the "validity" of data suggesting the persistence of discrimination. However, how can one adequately determine whether race-conscious or race-neural programs are justified if the historical and current context of discrimination in procurement and contracting is not considered?
- The report acknowledges that most agencies use race-conscious and race-neutral tools and combinations thereof. The challenge for most of these agencies will be to disassemble these race-conscious and –neutral programs in order to conduct the evaluations that the Commission recommends. The legal and programmatic need for such administrative burdens has not been demonstrated.
- The report touts government initiatives to expand small and minority-owned firms’ access to federal contracts through race-neutral means, including civil rights enforcement, expanded contracting opportunities, financial assistance and outreach, but fails to acknowledge that many such programs – some refined after the Adarand decision, do exist. Despite the existence of such programs, the participation rates of minorities in federal procurement have been less than four percent of the three hundred billion dollars spent annually for goods and services.4
The level of review propounded by the Commission reflects the position taken by the Bush Administration in its brief filed in the Grutter and Gratz cases. The Supreme Court soundly dismissed the Administration’s position that the race-neutral programs established in Texas, Florida and California were the proper and exclusive antecedents to any race-conscious approaches.
The Definition of "Race-Concious"
- The report states that "Race-neutral programs" are those afforded to all small businesses based on size, economic condition, geography or other nonracial criteria, such as financial incentives, improved access to capital, and administrative streamlining. However, "race-conscious programs use race as one factor among many in determining participant eligibility. Small and disadvantaged business programs, for example, require participating firms to demonstrate social and economic disadvantage. In such programs minority-owned firms are considered socially disadvantaged."
- As most federal programs use a combination of both race-neutrality and race-consciousness, they are all subject to the Commission’s standard of "serious consideration" and would have to identify workable alternatives, implement them, measure their effects and share information with other government agencies and stakeholders. The Commission’s position that implementation and measurement of race-neutral programs must precede any race-conscious efforts -- even if they were enacted into law based on an established history of discrimination -- is unjustified and would inordinately burden federal agencies.
- Conducting outreach "race-neutrally" and recommending that "good faith effort policies should be rooted in race-neutral outreach" when the programs were established to remedy decades of race-conscious discrimination in contracting is illogical and undermines the historical and factual bases upon which Congress enacted these programs.
- Further, it is not at all clear that all programs based on social disadvantage are by definition race-conscious. In that respect, the Commission’s definition of race-conscious may be overly broad. In essence, the Commission’s report is a "backdoor" approach to re-legislating and possibly weakening affirmative action programs that have been lawfully enacted by Congress.
The Recommended Frequency of Agency Reviews is Unjustified
Given the size and scope of federal procurement programs, annual or biennial reviews of race-conscious programs recommended by the Commission would be inordinately burdensome.
The disaggregation of socially disadvantaged firms into their racial subgroups in order to measure the effectiveness of race-neutral programs would be equally burdensome and unnecessary.
Nondiscrimination in Contracting
Recommendations in this report seem to indicate the Commission’s intent to eliminate equal opportunity and affirmative action programs. Enforcement of nondiscrimination in procurement and contracting is a commendable goal, but not at the expense of the programs themselves. The Commission’s recommendation is consistent with the conservative philosophy of limiting or eliminating affirmative action programs while emphasizing antidiscrimination efforts for individual victims.
In Conclusion, The Process And Procedures Used By The Commission Are Questionable. Further, LCCREF/AFC Is Concerned For The Following Reasons:
- The Commission issued this report as part of its annual mandate to opine about the civil rights enforcement activities of federal government agencies.5 This annual report must be submitted to the Congress by the end of the fiscal year, September 30th. However, this report is not the annual report contemplated by the Congress, as it does not offer an assessment of civil rights enforcement, i.e., complaint activity, litigation undertaken, settlements, or benefits to the ultimate beneficiaries.
- We are concerned about the possibility that the current draft of the report voted on by the Commission by conference call on July 22, 2005 was not the same draft report that was provided to the agencies for comment earlier in the year.6
- The data supporting this report are minimal at best. The report does not contain the level of intellectual rigor or legal and factual support that such a far-reaching report demands. It is far more ideological than thoughtful.
- Transparency is a term often used to reflect the importance of openness, access, legitimacy and integrity in a democratic society. Therefore, the public should have the opportunity to review this and similar reports before they are final.
- In an era of shrinking federal budgets for civil rights enforcement, this report and its recommendations could do far more harm than good. The report belittles racial discrimination and undermines attempts to redress discrimination that still exists today.
1 Americans for a Fair Chance, a project of the Leadership Conference on Civil Rights Education Fund in partnership with the Lawyers' Committee for Civil Rights Under Law, Mexican American Legal Defense and Educational Fund, NAACP Legal Defense and Educational Fund, Inc., National Asian Pacific American Legal Consortium, National Women's Law Center, and the National Partnership for Women and Families, was created to educate the public and the media about the importance of affirmative action and other programs aimed at expanding equal opportunity and preventing discrimination.
2 Adarand v. Pena, 515 US 200 (1995)
3 "Achieving Diversity: Race-Neutral Alternatives in American Education," (OCR Report), U.S. Department of Education, Office for Civil Rights, February 2004, http://www.ed.gov/about/offices/list/ocr/edlite-raceneutralreport2.html ); Grutter v. Bollinger, 539 US 982 (2003).
4 In addition, according to the White House report on affirmative action, African Americans accounted for 12.1 percent of the population in 1990, but they owned only 3.1 percent of the total businesses and 1.0 percent of receipts of all U.S. firms. Hispanics accounted for 9 percent of the population but only 3.1 percent of U.S. businesses and 1.2 percent of all receipts. These disparities are linked to past and present discriminatory practices, including access to capital. Http://clinton4.nara.gov/textonly/WH/EOP/OP/html/aa/aa09.html
5 The Commission’s authorizing legislation states that, "The Commission shall submit to the President and Congress at least one report annually that monitors Federal civil rights enforcement efforts in the United States. See P.L. 103-419, Section 3 (c) (1).