The Corner

Law & the Courts

Cooper Quotas

North Carolina governor Roy Cooper (D) announced yesterday a statewide goal of 10 percent for government contracting with minority-owned firms (defined by race, ethnicity, sex, and disability). He’s not alone with such nonsense; indeed, New York governor Andrew Cuomo (D) has set a goal of 30 percent in his state.

Now, it’s good to make sure public contracting programs are open to all, that bidding opportunities are widely publicized beforehand, and that no one gets discriminated against because of skin color, national origin, or sex. But that means no preferences because of skin color, etc. either — whether it’s labeled a “set-aside,” a “quota,” or a “goal,” since they all end up amounting to the same thing, and courts have ruled all to be presumptively unconstitutional.

Such discrimination is unfair and divisive; it breeds corruption and otherwise costs the taxpayers and businesses money to award a contract to someone other than the lowest bidder; and as noted it’s almost always illegal — indeed, unconstitutional — to boot.

On the legal point, there are two problems here. First, before the state can use racial classifications, it must at a minimum do a “disparity study” that documents evidence of discrimination in a specific contracting area that has to be remedied. Governor Cooper gets the process backward: He sets the racial goal, and then says it can be adjusted if some disparity study comes along that proves it’s too high.

Second, and in any event, in 2017 there’s no reason why quotas are the “narrowly tailored” way to remedy any discrimination. Rather, the state should ban racially preferential treatment for any group, enforce that ban, and require plenty of transparency — in publicizing bidding opportunities and in announcing the winners — to avoid cheating.

Contracts are not like employment selection or university admissions, where there is often an irreducible and significant amount of subjectivity in the decision-making. Rather, the low-bid process in government contracting can be made very transparent at every step, and this transparency should make it relatively easy to achieve any remedial purpose, that is, to detect and correct discrimination. This is an area where, as Chief Justice Roberts wrote famously, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

Most Popular

Politics & Policy

Yes, They Are Coming for Your Guns

At the Democratic-primary debate in Houston last night, Beto O’Rourke formally killed off one of the gun-control movement’s favorite taunts: The famous “Nobody is coming for your guns, wingnut.” Asked bluntly whether he was proposing confiscation, O’Rourke abandoned the disingenuous euphemisms that have ... Read More
White House

Politico Doubles Down on Fake Turnberry Scandal

It's tough to be an investigative reporter. Everybody who feeds you a tip has an axe to grind. Or, alternatively, you find yourself going, "I wonder if . . . ?" You put in your research, you talk to lots of people, you accumulate a huge pile of information, but you still haven't proved your hypothesis. A wise ... Read More
Culture

Four Cheers for Incandescent Light Bulbs

It brought me much -- indeed, too much -- joy to hear of the Trump administration's rollback of restrictions on incandescent light bulbs, even if the ban will remain in place. The LED bulbs are terrible. They give off a pitiable, dim, and altogether underwhelming "glow," one that never matched the raw (if ... Read More
White House

Rachel Maddow’s Turnberry Tale

To a certain kind of Rachel Maddow viewer, there are few more titillating preludes to a news segment than the one she delivered Monday: “If you have not seen it yet, you are going to want to sit down.” Maddow’s story began, as many of her stories do, with President Trump, this time focused on his hotel ... Read More