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 esterday, by a
thin 51-47 margin, the Senate confirmed the eminently well-qualified
Theodore Olson to be solicitor
general. Mr.
Olson's job will be representing the federal government before the
Supreme Court, and what may be his toughest case is already waiting
for him.
Two months ago, on March 26, the Court agreed to hear Adarand
Constructors, Inc. v. Mineta, a case involving the constitutionality
of federal contracting preferences based on race and ethnicity.
The opening briefs in the case are due next month, and the indefensibility
of the program was recently revealed by the government in a sworn
deposition. The case therefore presents a major test for the Bush
administration's commitment to the rule of law.
But first, some background. The plaintiff is a small, family-owned,
and Colorado-based highway-construction company. It specializes
in guardrail work, and had submitted the low bid on one such contract.
The prime contractor, however, awarded the bid to another company,
because the federal government pays a cash bonus when bids are accepted
from companies owned by members of certain racial and ethnic groups.
Adarand's rival was Hispanic and, therefore, in the preferred category;
Randy Pech, the owner of Adarand, was not.
This will be the third time the Court considers Adarand.
The original contract giving rise to the litigation was awarded
nearly twelve years ago, and the case has been bouncing around the
federal courts ever since. Each time the Supreme Court has ruled,
it has made clear its skepticism about the government's discriminatory
program. It is distinctly possible the Court will use Adarand
this time to make a definitive statement on the constitutionality
of racial and ethnic preferences in federal contracting.
The Court has already declared that discrimination by the federal
government will be held to the same, "strict scrutiny" standard
as discrimination by state and local governments. In other words,
if a preference is to remain constitutional, the government must
prove that there is a sufficient "factual predicate" for the preferences:
that there is no other way that it can remedy discrimination against
some groups except by discriminating against other groups.
That's where the recent deposition comes in. To make its case in
Adarand and in similar cases all over the country, the Department
of Justice has been relying on a single document: a 15-page 1996
report called "The Compelling Interest for Affirmative Action in
Federal Procurement: A Preliminary Survey." The Compelling Interest
statement appears at first blush to marshal an impressive array
of reports, dozens of committee hearings, and studies, going back
to 1964, documenting discrimination in various sectors of the economy.
In court filings the Department of Justice has called the Compelling
Interest statement "voluminous evidence" showing that "as a matter
of law Congress has the requisite evidence to take action to remedy
discrimination."
But on January 18 this year a Justice Department lawyer was deposed
in two cases, Gross Seed Company v. Nebraska and Sherbrooke
Turf v. Minnesota, a pair of ongoing challenges to preferences
in federally funded highway contracting. The lawyer's testimony
reveals that the Department of Justice has almost no factual support
in defense of these preferences.
The lawyer questioned, Mark Gross, is listed in the Federal Register
as the contact person for the Compelling Interest statement. Mr.
Gross, who works in the Department's Civil Rights Division, admitted
in his deposition that the Compelling Interest statement was not
an attempt to provide a neutral, scholarly evaluation of whether
discrimination existed in federal procurement. Instead, it was pure
advocacy: The Department of Justice wanted to "try and compile some
of the kinds of evidence that would support the continuing need
for an affirmative action process in federal contracting." The author
of the Compelling Interest statement was not told to find out if
discrimination was essential to fighting discrimination. Instead
he was "charged with finding whatever reports are out there that
would support the compelling interest."
No author had been listed for the Compelling Interest statement
when it had been published in the Federal Register. So Mr. Gross
was asked who actually wrote it. It turns out that the author was
a paralegal of four years experience who has since left the Department
to go to law school. The young man, Sean Flynn, was given all of
one week to do his work. He was rushed to complete the study so
that it could "accompany the publication of the report on reforms
to federal procurement."
But surely his work was carefully supervised? Actually, no. His
product was never reviewed substantively by Department of Justice
lawyers. Their review of Flynn's work was limited to "editing purposes"
and "clarity." This lack of attorney oversight is particularly odd
since the Compelling Interest contains numerous interpretations
of constitutional law.
What did paralegal Flynn and the Department find? Were there, for
example, instances of discrimination by government officials? Again,
the answer is no. When asked whether "you or anyone else have [had]
occasion to determine or otherwise find evidence of discrimination
perpetrated against any contractors by any level of government on
the basis of race or gender," Mr. Gross answered, "I didn't and
I don't — don't know of any."
Mr. Gross's answer cannot be dismissed as that of just one bureaucrat
taken by surprise: He was the individual listed by the government
as its expert on "Any findings of discrimination in the highway
industry or need for the race, ethnic, and gender presumptions related
to the [disadvantaged business enterprise, or "DBE"] program." If
even he cannot point to evidence of government discrimination, it
is fair to conclude that no such evidence of discrimination has
been established.
What about discrimination by private actors? The Compelling Interest
statement cites 58 state and local "disparity studies." These studies
are intended to measure contracting dollars awarded to minority-
and women-owned firms against the availability of those firms. But
such studies are notoriously unreliable — and have frequently
been dismissed by the courts — and no one at Justice ever looked
at any of them. Paralegal Flynn did not look to see if any of the
information was true.
The studies concluded that minority- and women-owned firms received
fewer public contracting dollars than expected, and the federal
government then concluded that this must be due to discrimination,
and that this justifies preferences. But when asked, "You didn't
as part of your analysis form an opinion as to whether or not that
difference was due to discrimination or whether it was due to some
other factors?" Mr. Gross replied, "No, I didn't." Gross was certain
of this. He was asked, "Did you or anyone at the Department [determine]…whether
or not that was the result of discrimination or whether it could
be the result of unrelated factors?" Mr. Gross answered, "I don't
think we really — really studied that." When asked a related
question, Mr. Gross admitted he never ascertained "whether or not
the difference [in the number of companies available to bid] was
due to discrimination or whether it was due to some other factors."
Of course, if disparities are not due to discrimination, but are
the result of other factors — such as the fact that minority-
and women-owned firms are, in the aggregate, smaller and newer than
their white male–owned competitors — then the need for preferences
has not been established.
When pressed on more specific issues, the federal government's lack
of knowledge became even more glaring. Sherbrooke Turf and
Gross Seed, like Adarand, involve preferences in highway
contracting, so deposition questions focused on those areas. When
asked, "As part of your work did you determine whether or not there
were any reports commissioned by Congress to examine whether and
to what extent there was discrimination within the road construction
industry or the construction industry against DBEs?," Mr. Gross
acknowledged, "I didn't see reports of that kind, no."
Nor is the report even up to date. "The Compelling Interest for
Affirmative Action in Federal Procurement: A Preliminary Survey"
was compiled in 1996 but, despite the word "preliminary" in the
title, Mr. Gross testified that "there hasn't been a subsequent
review of the program" in the five years since the report was issued.
None of this is to criticize Mr. Gross, who was just telling the
truth. But it does mean that the lawyers at the Justice Department,
starting with Attorney General John Ashcroft, need to reassess the
Clinton administration's policy of defending the indefensible.
Mr. Ashcroft said in March, when asked on Meet the Press
if he would defend the government's contracting program, that "I
defend the law of America. Obviously, I will defend the Department
of Transportation's regulations." But one doubts that Mr. Ashcroft
knew how weak the government's case was, and it is anything but
obvious why the nation's attorney general, who swears to uphold
the Constitution, should ignore that higher law if an agency's regulations
are shown to violate it.
The Justice Department is housed in a massive stone building, and
above one of the entrances is inscribed, "The United States prevails
when justice is done." In other words, it is no victory for the
government if it prevails despite the law, and it is no defeat if
it admits the law is against it. Good advice for the president,
the attorney general, and the new solicitor general as they ponder
their next move in Adarand Constructors, Inc. v. Mineta.
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