Amicus Curiae Brief — Adarand Constructors, Inc. v. Mineta

J) UN f 20> 0) PILE D

No. 00-730 amo

ADARAND CONSTRUCTORS, INC.,

Petitioner,

Vv.

NORMAN Y. MINETA, Secretary of the United States

Department of Transportation, et al.,

Respondents.

+

On Writ of Certiorari to the

United States Court of Appeals

for the Tenth Circuit

oa

BRIEF AMICUS CURIAE OF PACIFIC LEGAL

FOUNDATION, AMERICAN CIVIL RIGHTS

INSTITUTE, AND CENTER FOR EQUAL

OPPORTUNITY IN SUPPORT OF PETITIONER

o—

JOHN H. FINDLEY

Counsel of Record

SHARON L. BROWNE

Pacific Legal Foundation

10360 Old Placerville Road,

Suite 100

Sacramento, California 95827

Telephone: (916) 362-2833

Facsimile: (916) 362-2932

Counsel for Amici Curiae

Pacific Legal Foundation,

American Civil Rights Institute,

and Center for Equal Opportunity

Bg NO Se AY EE Lia og ER he ) 1. Whether the court of appeals misapplied the strict

ee Ms ae eee rane scrutiny standard in determining if Congress had a compelling

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TABLE OF CONTENTS

Page

CUBS TIONS FREED oc ccccccccscccessuscessuneen i

TABLE OF ALFTRRIENCEED oc cccccccccecescsceuseueunen iv

IDENTITY AND INTEREST OF AMICI CURIAE .......... l

STATEMENT OF THE CASE ....ccccccccccccsccccccecs 2

SUMMARY OF ARGUMENT 2... ccccccccccsccccesccces 4

UTI TS oc cccccccccsesscesceebensneennnl 4

ABATE occ cccccsccestsescessetene eee 5

I. THE HISTORY OF CIVIL RIGHTS LITIGATION

DEMONSTRATES THAT THE EQUAL

PROTECTION COMPONENT OF THE

CONSTITUTION SHOULD BE INTERPRETED TO

PROHIBIT BOTH RACE-BASED PREFERENCES

ARG DEBUCRIRGINA TEU «oc ncccécccceneuveseunun 5

A. The Initial Promise of Equality Betrayed by

Dred Seat en FeO os 0ccs0eessstseeeee 6

B. Brown Seeks To Remove the Use of Race from

Government Decisionmaking .................. 7

C. The Civil Rights Act of 1964 Enacted To

Prohibit Discriminatory Preference .............. 9

D. Civil Rights Jurisprudence Reverts To

Authorizing Race Preferences ................. 12

E. California Returns to Color-Blind Jurisprudence .. 16

ll. THE STATUTORY RACE PREFERENCES

FAR, Teme COGN TEE occccecsecwsnceaeeneee 18

A. The Statutes’ Findings Fail the Croson Mandate

To Identify Specific Discrimination ............ 18

B. The Federal Race-Preference Program Is Not

Remedial but Merely Seeks Racially

Proportional Participation .................... 20

TABLE OF CONTENTS—Continued

Page

C. The Chosen Remedy of Preference

Lacks Any Nexus To, and Does Nothing

To Correct, the Purported Violation ............ 21

D. The Race-Preference Statutes Make No

Attempt To Restrict Their Benefits To

Victims of Past Discrimination ................ 22

ee ee ccc beedededsecceoccocevepes 23

iv

TABLE OF AUTHORITIES

Page

Cases

Adarand Constructors, Inc. » f zna,

SEP Ga ENED 1 ccbccducacenceesekiie 14-15, 21

Adarand Constructors, Inc. v. Slater,

228 F.3d 1147 (10th Cir. 2000) .................. 3,5

Alexander v. Sandoval, 149 L. Ed. 2d 517 (2001) ........ 2

Anderson v. Martin, 375 U.S. 399 (1964) ........0...... 8

Associated General Contractors of California,

Inc. v. City and County of San Francisco,

err l

Bolling v. Sharpe, 347 U.S. 497 (1954)... 2.0.02... 19, 23

Brown v. Board of Education,

RE Ire eee 7-8, 14

Brown v. Board of Education,

Pe ee SD ncbnknnedusebadedudentenele 9

Buchanan v. Warley, 245 U.S. 60 (1917) .............. 8

City of Richmond v. J.A. Croson Co..,

Ga es SGD ck ciccccccesess 5, 15, 18-19, 21-23

Coalition for Economic Equity v. Wilson,

i eee 22-23

DeFunis v. Odegaard, 416 U.S. 312 (1974) ............ 5

Dred Scott v. Sanford, 60 U.S.

NN Ee ee 6, 18

Firefighters v. Cleveland, 478 U.S. 501 (1986) ......... 16

Fullilove v. Klutznick, 448 U.S. 448 (1980) ...... 5, t8-19

— le

Vv

TABLE OF AUTHORITIES—Continued

Furnco Construction Corp. v. Waters,

SB UG. SET CIGD oc cccccccccsscosscvacoccees 11

Griggs v. Duke Power Co., 401 U.S. 424 (1971) .... 10,13

Hi-Voltage Wire Works, Inc. v. City of San Jose,

12 P.3d 1068 (Cal. 2000) ............---545. passim

Hughes v. Superior Court of California,

SID ULB. GEO CITT cc ccccccccccccccccccccess 8,14

International Brotherhood of Teamsters v. U. S.,

GE UD. TRO GIIGGD cccccccescccocsccesecscscdes 14

Loving v. Virginia, 388 U.S. 1 (1967) .............++-- 8

Lutheran Church-Missouri Synod v.

Federal Communications Commission,

141 F.3d 344 (D.C. Cir. 1998) ..............-.- 20-21

McDonald v. Santa Fe Trail Transportation Co.,

GT UD. FID GISGED cccvccccseccccscscessces 10, 13

Peterson v. Greenville, 373 U.S. 224 (1963) ............ 8

Plessy v. Ferguson, 163 U.S. 537 (1896) ......... 6-7, 18

Regents of the University of California v.

Bakke, 438 U.S. 265 (1978) ........ 1, 6, 10, 14-15, 17

Reitman v. Mulkey, 387 U.S. 369 (1967) ......-..--+--- 8

Rice v. Cayetano, 528 U.S. 495 (2000) ............55-. 2

Shaw v. Reno, 509 U.S. 630 (1993) .... 2... 6-0 ee ee eee 2

Sheet Metal Workers v. EEOC,

SFB UD. GBb CAGED 2c ccccccccccccccccvscess 14, 16

Shelley v. Kraemer, 334 U.S. 1 (1948) ........--6-+55: 8

vi

TABLE OF AUTHORITIES—Continued

Page

St. Mary’s Honor Center v. Hicks,

Se ED 6.00 648nc0cnndessecces Covenes 2

Steelworkers v. Weber, 443 U.S. 193 (1979) ... 12-14, 17-18

United States v. Paradise, 480 U.S. 149 (1987) ........ 15

Walker v. City of Mesquite,

a a SO Es CUED och cccccvcvesovcecees 21

Wessmann v. Gittens,

ee Se SEED ocdccesevvieveceacdeds 22

Wygant v. Jackson Board of Education,

ee ED a iv ben bebsnserpesevesadedes 15

Statutes

PEED ctddededuddeeedadbesddeveddexers 2

Dida dossnctetdbenoueuteseoessesaeéiates 3

Dt >: cnidiuncetbatkedwatddbebeteededes 3

DEE sbancouctdsuaudeeseveenseesseccebudes 2

DP ncv0ede0sentecdesGaseséeeeeweenenss 3

Di cbnetducweenbhtondedebeedautcemeothete 2

Intermodal Surface Transportation Efficiency Act of

1991, section 1003(b), Pub. L. No. 102-240, 105 Stat.

DU ccecudddsdboadséndadenuenetedh’ neces 2

Public Works Employment Act of 1977,

section 103(f)(2), Pub. L. No. 95-28 ............... 19

Vii

TABLE OF AUTHORITIES—Continued

Page

Small Business Act of 1958, § 8(a) ................... 2

DEED ov ccsecccccecdacsoctaneseteasubhanee 2

DEED cvcccoeccscesbeskseectscineeeedseunnan 3

BOED ccnpecesséesad enusdeseeassunienessuny 2

Surface Transportation and Uniform Relocation

Assistance Act of 1987, Pub. L. No. 100-17,

See Ss ED Cacec cht decnetdosusseticesve 2

Transportation Equity Act for the 21st

Century of 1998, section 1101(b), Pub. L.

No. 105-178, 112 Stat. 107 (1998) ................. 2

Constitutions

GP ELEED coc beentdcescndléesnnecenpedas l

Rules

Ge PGE ED cs cccecctvcccscceseeseses l

EE 6 vndadeneesbensedbds os benlaedissnee ds l

Miscellaneous

Van Alstyne, Rites of Passage: Race,

the Supreme Court, and the Constitution,

Se a is ES PUP rensccccsesecccoseces 7

IDENTITY AND INTEREST

OF AMICI CURIAE

Pursuant to Supreme Court Rule 37, Pacific Legal

Foundation, American Civil Rights Institute, and Center for

Equal Opportunity respectfully submit this brief amicus curiae

in support of Petitioner Adarand Constructors, Inc. All parties

consented to the filing of this brief and their letters of consent

have been lodged with the Clerk of this Court.

Pacific Legal Foundation (PLF) is a nonprofit, tax-exempt

corporation organized under the laws of the State of California,

or the purposes of engaging in litigation in matters affecting the

public interest. PLF has participated in numerous cases

involving discrimination on the basis of race including Regents

of the University of California v. Bakke, 438 U.S. 265 (1978);

Associated General Contractors of California, Inc. v. City and

County of San Francisco, 813 F.2d 922 (9th Cir. 1987); and Hi-

Voltage Wire Works, Inc. v. City of San Jose,\2 P.3d 1068 (Cal.

2000). PLF considers this case to be of special significance in

that it concerns government’s proper role in enacting race

preferences.

The American Civil Rights Institute (ACRI) is a national

civil rights organization, based in Sacramento, Ca'ifornia,

created to educate the public about the problems created by

governmental race and sex preferences. ACRI’s initial focus

was on monitoring the implementation of the California Civil

Rights Initiative, which was added to the California

Constitution as Article I, Section 31 when the voters approved

Proposition 209. ACRI’s chairman is Ward Connerly, who was

the Chairman of the Yes-on-209 campaign in the California

' Pursuant to Supreme Court Rule 37.6, Amici affirm that no counsel

for any party in this case authored this brief in whole or in part; and

furthermore, that no person or entity has made a monetary

contribution specifically for the preparation or submission of this

brief.

2

1996 general election and was a signatory of the argument

appearing in the ballot pamphlet in favor of that initiative.

The Center for Equal Opportunity (CEO) is a District of

Columbia nonprofit corporation. CEO’s main purpose is to

study issues concerning race and ethnicity. CEO has

participated actively in a wide variety of civil rights cases

including: Alexander v. Sandoval, 149 L. Ed. 2d 517 (2001);

Rice v. Cayetano, 528 U.S. 495 (2000); Shaw v. Reno, 509 U.S.

630 (1993); and St. Mary's Honor Center v. Hicks, 509 U.S.

502 (1993).

STATEMENT OF THE CASE

This Court granted certiorari to determine the following

questions.

1. Whether the court of appeals misapplied the strict

scrutiny standard in determining if Congress had a compelling

interest to enact legislation designed to remedy the effects of

racial discrimination.

2. Whether the United States Department of

Transportation’s current Disadvantaged Business Enterprise

program is narrowly tailored to serve a compelling

governmental interest.

As noted by the Tenth Circuit, the statutory framework of

the Department of Transportation’s current Disadvantaged

Business Enterprise (DBE) program is formed by sections 8(a),

8(d), and 502 of the Small Business Act of 1958, as amended,

(SBA), 15 U.S.C. §§ 637(a), (d), and 644(g); the Surface

Transportation and Uniform Relocation Assistance Act of 1987

(STURAA), Pub. L. No. 100-17, 101 Stat. 132, 145 (1987);

section 1003(b) of the Intermodal Surface Transportation

Efficiency Act of 1991 (ISTEA), Pub. L. No. 102-240, 105 Stat.

1914, 1919-21 (1991); section 1101(b) of the Transportation

Equity Act for the 21st Century of 1998 (TEA-21), Pub. L. No.

105-178, 112 Stat. 107, 113-15 (1998), and their accompanying

3

regulations. Adarand Constructors, Inc. v. Slater, 228 F.3d

1147, 1158 (10th Cir. 2000).

Section 8(d)(1) of the SBA declares it to be “the policy of

the United States that . . . small business concerns owned and

controlled by socially and economically disadvantaged

individuals . . . shall have the maximum practicable opportunity

to participate in the performance of contracts let by any Federal

agency.” 15 U.S.C. § 637(d)(1). The SBA defines “socially

disadvantaged individuals” as “those who have been subjected

to racial or ethnic prejudice or cultural bias because of their

identity as a member of a group without regard to their

individual qualities.” 15 U.S.C. § 637(a)(5). “Economically

disadvantaged individuals” are defined by the SBA as “those

socially disadvantaged individuals whose ability to compete in

the free enterprise system has been impaired due to diminished

capital and credit opportunities as compared to others in the

same business area who are not socially disadvantaged.” 15

U.S.C. § 637(a)(6)(A). Adarand, 228 F.3d at 1160.

As found by the court below, id. at 1160-61:

STURAA, ISTEA and TEA-21, the transportation

appropriations statutes at issue in this case

incorporate the presumption of disadvantage from

SBA § 8(d). See STURAA § 106(c)(2)(B), ISTEA

§ 1003(b)(2)(B); TEA-21 § 1101(b)(2)(B) (providing

that the term “socially and economically

disadvantaged individuals” has the meaning of such

term under SBA § 8(d) “and relevant subcontracting

regulations promulgated pursuant thereto.”)

STURAA, ISTEA, and TEA-21 all set forth

aspirational goals of 10% DBE participation in

federal subcontracting. See STURAA § 106(c)(1);

ISTEA § 1003(b)(1); TEA-21 § 1101(b)(1).

The question before this Court is whether Congress had a

compelling interest to enact this type of race preference

4

legislation and, if so, whether these race-based preferences are

narrowly tailored to serve that interest.

SUMMARY OF ARGUMENT

The analysis of civil rights law set forth in Hi-Voltage

Wire Works, Inc. v. City of San Jose shows that the proper

interpretation of equal protection law is one that prohibits

government from benefiting or burdening individuals on the

basis of race. The federal highway construction statutes fail this

test in granting preferences to members of some minority

groups solely on the basis of their race. In enacting the race

preferences at issue, Congress has failed to make findings

identifying specific discrimination and therefore has been

unable to create narrowly tailored remedial programs which

compensate actual victims of race discrimination. This defect

violates the equal protection component of the Fifth

Amendment.

INTRODUCTION

The only conceivable rationale available for racial

preferences in the contracting context is remedial-stopping

discrimination and making whole its past victims. But in 2001,

there will never be an instance where such discrimination can

pass strict scrutiny, because there will always be a better

approach to remedying any discrimination than granting

preferences based on race. Bidding generally has been and

always can be structured so that the low bidder will know if he

was discriminated against. Nor are preferences needed as a

prophylactic measure to head off discrimination, since the

government can require publication and wide circulation of

contracting opportunities. Moreover, the systemic, formal

racial discrimination that might have justified blanket racial

classifications is, happily, now a thing of the past in the

contracting area. Instead, many governments are under political

pressure to discriminate in favor of some minorities. Even if

there could still, in theory, be a few cases of discrimination that

ee ee ON ee ee ee oe

5

go unremedied in the absence of racial classifications, there will

be many more cases of discrimination that will result from the

institutionalization of racial preferences. This Court gave some

leeway to government actors in its Adarand and Croson

decisions, but now it is being taken advantage of. Consider this

very case, where the federal executive branch, State of

Colorado, and court of appeals all have failed to make a good

faith attempt to follow this Court’s 1995 decision. Instead, they

have exploited the fact that the Court left the door slightly ajar

and have driven a truck through it. The time has come to shut

that door.

ARGUMENT

I

THE HISTORY OF CIVIL RIGHTS

LITIGATION DEMONSTRATES THAT THE

EQUAL PROTECTION COMPONENT OF. THE

CONSTITUTION SHOULD BE INTERPRETED

TO PROHIBIT BOTH RACE-BASED

PREFERENCES AND DISCRIMINATION

A useful primer on the changing state of civil rights law is

set out in the recent decision of the California Supreme Court

in Hi-Voltage Wire Works, Inc. v. City of San Jose, 12 P.3d

1068 (Cal. 2000). In holding that a city’s race and sex

preferences in public contracting violated the state constitution,

the court provided an in-depth review of this Court’s analysis

of civil rights. As the California court found: “In the history of

this Court and this country, few questions have been more

divisive than those arising from governmental action taken on

the basis of race.” /d. at 541 (quoting Fullilove v. Klutznick,

448 U.S. 448, 516 (1980) (Powell, J., concurring), and DeFunis

v. Odegaard, 416 U.S. 312, 350 (1974) (Brennan, J.,

dissenting)).

6

A. The Initial Promise of Equality

Betrayed by Dred Scott and Plessy

Citing the Declaration of Independence, the California

court noted that while our nation was founded on the principle

that “all men are created equal,” “our history reflects a

continuing struggle to enable every individual to fully realize

this ‘self-evident’ article of faith.” (Citing Regents of the

University of California v. Bakke, 438 U.S. at 387-95 (Marshal,

J., concurring and dissenting).) Hi-Voltage, 12 P.3d at 1072.

The California court found that while the courts have often

served to effect positive change in the quest for equality, their

articulation of a coherent vision of the civil rights guaranteed by

our Constitution has had its low points. “The nadir was perhaps

the Dred Scott decision, in which the United States Supreme

Court denied citizen status to African-Americans, ‘whether

emancipated or not.’” Hi-Voltage, 12 P.3d at 1073 (citing Dred

Scott v. Sanford, 60 U.S. (19 How.) 393, 405 (1856)).

After the Civil War, Congress overturned the Dred Scott

decision through its adoption of the Fourteenth Amendment

expressly defining citizenship and forbidding any state from

“denying to any person within its jurisdiction the equal

protection of the laws.” Yet, in Plessy v. Ferguson, 163 U.S.

537, 552 (1896), this Court upheld state-initiated race

restrictions and approved legally enforced segregation on a

“separate but equal” rationale. Hi-Voltage, 12 P.3d at 1073.

Although speaking only for himself at the time,

Justice Harlan vigorously dissented: “Our

Constitution is color-blind, and neither knows nor

tolerates classes among citizens.” “The destinies of

the two races, in this country, are indissolubly linked

together, and the interests of both require that the

common government of all shall not permit the seeds

of race hate to be planted under the sanction of law.”

7

Hi-Voltage, 12 P.3d at 1073 (citing Plessy, 163 U.S. at 559-60

(Harlan, J., dissenting)).

B. Brown Seeks To Remove the Use of Race

from Government Decisionmaking

Justice Harlan’s vision of color-blind equality before the

law would not prevail until Brown v. Board of Education, 347

U.S. 483 (1954), 58 years later. In Brown, this Court repudiated

Plessy and “acknowledged the invidious effect of separating

individuals solely because of their race. ‘The impact is greater

when it has the sanction of the law. . . .””-Hi-Voltage, 12 P.3d

at 1073 (quoting Brown, 347 U.S. at 494).

As Hi-Voltage found, while Brown concerned state-

imposed segregation in education, the courts did not hesitate to

apply its principle in other contexts. Hi-Voltage, 12 P.3d at

1073 (citing Van Alstyne, Rites of Passage: Race, the Supreme

Court, and the Constitution, 46 U. Chi. L. Rev. 775, 783 n.24

(1979)).

In summarizing the common thread of these cases,

Professor Van Alstyne observed that in the years

between 1955 and 1976 following Brown v. Board of

Education, “virtually every other race-related

decision by the Supreme Court ... ‘removed the

race tine from our governmental systems.’ ” (Van

Alstyne, supra, 46 U.Chi L.Rev. at p. 783.) “To the

reasonably discerning, this appeared true even in

instances involving highly controversial judicial

decrees that paired racially identifiable schools,

redrafted attendance lines, or mandated busing. In

each instance, the fulcrum of judicial leverage was

an existing governmental race line, which the

particular judicial order sought to remove. The

object was thus to disestablish particular, existing

8

uses of race, not to establish new ones.” (/d. at pp.

783-784, fn. omitted).

Hi-Voltage, 12 P.3d at 1073-74 (emphasis by the court).

Hi-Voltage found that Brown served as a landmark in this

Court’s active development of-a “color-blind” jurisprudence.

The California court, id., cited Hughes v. Superior Court of

California, 339 U.S. 460 (1950), which upheld an injunction

against picketers seeking to have a supermarket hire African-

American grocery clerks proportionate to the number of

African-American customers at that store. This Court ruled

“that it would encourage discriminatory hiring to give

constitutional protection to petitioners’ efforts to subject the

opportunity of getting a job to a quota system.” /d. at 463.

Hi-Voltage further relied on Peterson v. Greenville, 373

U.S. 224 (1963), in which this Court struck down a city

ordinance requiring restaurant and hotel proprietors to maintain

segregated facilities. When a state “passes a law compelling

persons to discriminate against other persons because of race,”

it commits “a_ palpable violation of the Fourteenth

Amendment.” /d. at 248. Hi-Voltage also cited Reitman v.

Mulkey, 387 U.S. 369 (1967), concerning a state constitutional

amendment that, while facially neutral, encouraged and

facilitated racial discrimination in the rental and sale of

residential property. “As in analogous decisions, the state had

violated the right of equal protection because it ‘had taken

affirmative action designed to make private discriminations

legally possible.’ /d. at 375.” Hi-Voltage, 12 P.3d at 1074.

Hi-Voltage also cited Loving v. Virginia, 388 U.S. 1, 10

(1967), striking down a state ban on interracial marriage;

Anderson v. Martin, 375 U.S. 399, 402 (1964), invalidating a |

state statute requiring designation of candidates’ race on

electoral ballots; Shelley v. Kraemer, 334 U.S. 1 (1948),

prohibiting a state court’s enforcement of restrictive covenants;

and Buchanan v. Warley, 245 U.S. 60 (1917), invalidating a

wer

9

statute forbidding blacks and whites from moving into a block

where the greater number of residences were occupied by

persons of the other race. Hi-Voltage, 12 P.3d at 1074 n.5. As

the California court observed:

Professor Alexander Bickel referred to these

cases as “the great decisions of the Supreme Court”

whose lesson “and the lesson of contemporary

history have been the same for at least a generation:

discrimination on the basis of race is illegal,

immoral, unconstitutional, inherently wrong, and

destructive of democratic society.” (Bickel, The

Morality of Consent (1975) p. 133 (Bickel).) For :

Professor Van Alstyne, “the message is

commendably even stronger. Laws that divide and

index people to measure their civil rights by race are

unconstitutional. Laws that encourage others to do

so are similarly invalid. And laws attempting to

advance either policy even in disguise will likewise

be struck down whenever it is within the capacity of

conscientious courts to see beneath their cellophane

wrappers.” (Van Alstyne, supra, 46 U.Chi. L.Rev.

at p. 792, fn. omitted.)

Hi-Voltage, 12 P.3d at 1074-75.

C. The Civil Rights Act of 1964 Enacted To

Prohibit Discriminatory Preference

Although this Court had rejected the principle of separate

but equal and had directed the admission of students to public

schools “on a racially nondiscriminatory basis with all

deliberate speed,” Brown v. Board of Education, 349 U.S. 294,

301 (1955), many officials charged with implementing the

mandate were “reluctant if not recalcitrant” to perform their

duty. Hi-Voltage, 12 P.3d at 1075. Congress enacted the Civil

Rights Act of 1964 in response. “As the floor debates and

committee reports attest, Congress intended that the Act reflect

10

Justice Harlan’s understanding of the Constitution and “be

‘colorblind’ in its application.” Hi-Voltage, 12 P.3d at 1075

(quoting Bakke, 438 U.S. at 415 (Stevens, J., concurring and

dissenting)).

Title VII of the Civil Rights Act forbids, with limited

exceptions, discrimination in employment on the basis of race,

color, religion, sex, or national origin. This Court construed

Title VII in Griggs v. Duke Power Co., 401 U.S. 424 (1971).

African-American workers claimed a racially neutral hiring and

promotion criterion unrelated to any job requirement

discriminated against them in its actual effect. This Court

agreed in a unanimous opinion: “The objective of Congress in

the enactment of Title VII is plain from the language of the

statute. It was to achieve equality of employment opportunities

.... Id at 429. To that end, the Act prohibited “not only

overt discrimination but also practices that are fair in form, but

discriminatory in operation.” /d at 431. Nevertheless, this

Court stressed: “Congress did not intend by Title VII, however,

to guarantee a job to every person regardless of qualifications

.... Discriminatory preference for any group, minority or

majority, is precisely and only what Congress has proscribed.”

Id. at 430-31. Hi-Voltage, 12 P.3d at 1075.

Subsequently, this Court made clear in McDonald v. Santa

Fe Trail Transportation Co., 427 U.S. 273, 278-79 (1976),

“Title VII . . . prohibits the discharge of ‘any individual’

because of ‘such individual’s race.’ Its terms are not limited to

discrimination against members of any particular race.” . . .

“This conclusion is in accord with uncontradicted legislative

history to the effect that Title VII was intended to ‘cover white

men and white women and all Americans,’ and create an

‘obligation not to discriminate against whites.’” Jd at 280.

Accordingly, regardless of the complainant’s race, the “same

standards” prohibiting employment discrimination applied. /d.

Hi-Voltage, 12 P.3d at 1076 (citations omitted).

——

In Furnco Construction Corp. v. Waters, 438 U.S. 567,

577-78 (1978), this Court cautioned that “Title VIl...doesnot -

impose a duty to adopt a hiring procedure that maximizes hiring

of minority employees.” “It is clear beyond cavil that the

obligation imposed by Title VII is to provide an equal

opportunity for each applicant regardless of race, without regard

to whether members of the applicant’s race are already

proportionately represented in the work force.” Jd. at 579. Hi-

Voltage, 12 P.3d at 1076.

From these cases the California court found:

The Supreme Court’s early interpretation of Title VII

emphasized several factors: The purpose of Title VII

was to ensure equal opportunity for all. Thus,

discriminatory practices were forbidden irrespective

of the victim’s race. Relief could take the form of

restitution to individual victims, including those

establishing that an employer’s pattern and practice

of discrimination deterred their applications for

employment. It could also be remedial to eradicate

the effects of specific discriminatory practices, but

courts had no obligation or authority to require any

particular affirmative hiring or other employment

practices. In other words, consistent with

congressional intent, the court’s construction

confirmed and reinforced the role of government as

color-blind in these matters.

Hi-Voltage, 12 P.3d at 1076.

12

D. Civil Rights Jurisprudence Reverts

To Authorizing Race Preferences

The California court found that the analytical framework

of Title VII jurisprudence was substantially modified in 1979 by

Steelworkers v. Weber, 443 U.S. 193 (1979). There this Court

upheld an employer’s voluntarily initiated training program

intended to eliminate a conspicuous racial imbalance in its

craftworkers by providing that at least half of the trainees

chosen be African-Americans “until the percentage of black

skilled craftworkers in the . . . plant approximated the

percentage of blacks in the local labor force.” /d. at 199. A

majority of the court found that “[e]xamination of [the

legislative history of Title VII and the historical context from

which the Act arose] makes clear that an interpretation . . . that

forbade all race-conscious affirmative action would ‘bring

about an end completely at variance with the purpose of the

statute’ and must be rejected.” /d at 201-02. Because

“Congress’ primary concern in enacting the prohibition against

racial discrimination in Title VII of the Civil Rights Act of 1964

was with ‘the plight of the Negro in our economy,’” id. at 202,

and “private and voluntary affirmative action efforts [was] one

method of solving this problem,” id. at 203, Congress could not

have meant to ban them absolutely. /d at 206. Hi-Voltage,

12 P.3d at 1076-77.

The California court observed that in concurring, Justice

Blackmun found the court’s expansive approach

somewhat disturbing for me because, as Mr. Justice

Rehnquist points out, the Congress that passed Title

VII probably thought it was adopting a principle of

nondiscrimination that would apply to blacks and

whites alike. While setting aside that principle can

be justified where necessary to advance statutory

policy by encouraging reasonable responses as a

form of voluntary compliance that mitigates

‘arguable violations,’ discarding the principle of

13

nondiscrimination where no countervailing statutory

policy exists appears to be at odds with the bargain

struck when Title VII was enacted.” (Weber, supra,

443 U.S. 193, 212-213 (conc. opn. of Blackmun, J.).)

Justice Blackmun also expressed concern that under

the majority’s rule, “the individual employer need

not have engaged in discriminatory practices in the

past.” (/d. at p. 213).

Hi-Voltage, 12 P.3d at 1077.

Both Chief Justice Burger and then-Justice Rehnquist

dissented. The Chief Justice criticized the majority’s apparent

reversal of settled law: “Until today, I had thought the Court

was of the unanimous view that ‘discriminatory preference for

any group, minority or majority, is precisely and only what

Congress has proscribed’ in Title VII.” Weber, 443 U.S. at 218

(Burger, C.J., dissenting) (quoting Griggs, 401 U.S. at 431). In

his view, the legislative history established that the Civil Rights

Act “was conceived and enacted to make discrimination against

any individual illegal, and | fail to see how ‘voluntary

compliance’ with the no-discrimination principle that is the

heart and soul of Title VII as currently written will be achieved

by permitting employers to discriminate against some

individuals to give preferential treatment to others.” Weber,

443 U.S. at 218. Hi-Voltage, 12 P.3d at 1077.

Justice Rehnquist’s dissent recounted the numerous cases

in which the Court had “never wavered in our understanding

that Title VII ‘prohibits a// racial discrimination in employment,

without exception for any group of particular employees.’ ”

Weber, 443 U.S. at 220 (Rehnquist, J., dissenting) (quoting

“McDonald, 427 U.S. at 283). He also exhaustively analyzed

extensive portions of Title VII's legislative history supporting

that understanding. Weber, 443 U.S. at 226-54. For example,

“Senator Humphrey [one of the bipartisan floor managers of the

entire civil rights bill in the Senate] . . . stated that ‘nothing in

14

the bill would permit any official or court to require any

employer or labor union to give preferential treatment to any

minority group.’ ” Jd. at 237 (footnote omitted). Senator

Kuchel, the other bipartisan floor manager, explained:

“*Employers and labor organizations could not discriminate in

favor of or against a person because of his race, his religion, or

his national origin. In such matters . . . the bill now before us

.. . is color-blind.’ [Citation.]” /d. at 238. As its proponents

emphasized, the Act “ ‘provides no preferential treatment for

any group of citizens. In fact, it specifically prohibits such

treatment.’” /d. at 248 (footnote and citations omitted). Hi-

Voltage, 12 P.3d at 1077-78.

The California court found that in the wake of Weber,

Title VII jurisprudence underwent a sea change in less than a

decade from providing individualized restitutionary relief

for specific injury to approving race-conscious practices

by court order or employer-initiated programs. (Comparing

International Brotherhood of Teamsters v. U. S., 431 U.S. 324,

342-43 n.24, 346-47, 356-62, 374-75 n.61 (1977), with Sheet

Metal Workers v. EEOC, 478 U.S. 421, 445 (1986).) Hi-

Voltage, 12 P.3d at 1078. “Having once validated consideration

of race, the United States Supreme Court struggled to articulate

a principled, consistent standard for doing so given its earlier

construction of Title VII. (See also Adarand Constructors, Inc. ~

v. Pena, 515 U.S. 200, 212-31 (1995) [reflecting similar

difficulty developing coherent principles for consistently

resolving equal protection challenges to race-based actions]).”

Hi-Voltage, 12 P.3d at 1078 (footnote omitted).

Hi-Voltage found that a comparable evolution occurred in

decisions involving equal protection challenges. “Setting aside

such holdings as Hughes v. Superior Court of California, 339

U.S. 460, and Brown v. Board of Education, 347 U.S. 483, five

members of the Supreme Court in Bakke, 438 U.S. 265,

expressed the view that the Constitution will tolerate race-based

State action intended to remedy the effects of past

——

—

~

15

discrimination even on behalf of individuals who did not

personally suffer as a result.” Hi-Voltage, 12 P.3d at 1078

(citing Bakke, 438 U.S. at 316-19 (Powell, J.) id. at 324-26 and

n.1 (Brennan, J., concurring and dissenting, joined by White,

Marshall, and Blackmun, JJ.)).

Hi-Voltage found that in Wygant v. Jackson Board of

Education, 476 U.S. 267, 274 (1986), this Court “accepted the

licitness of race-conscious remedies with the caveat ‘a public

employer . . . must ensure that, before it embarks on an

affirmative-action program, it has convincing evidence that

remedial action is warranted.’” Jd. at 277. Hi-Voltage, 12 P.3d

at 1078 n.9. Similarly, Adarand Constructors, Inc. v. Pena, 515

U.S. 200, 236-37 (allowing federal agencies to use a “narrowly

tailored race-based remedy” in response to “lingering effects of

racial discrimination against minority groups”), and City of

Richmond vy. J.A. Croson Co., 488 U.S. 469, 509 (1989)

(finding that “a significant statistical disparity between the

number of qualified minority contractors willing and able to

perform a particular service and the number of such contractors

actually engaged by the locality or the locality’s prime

contractors [could give rise to] an inference of discriminatory

exclusion”), justified taking affirmative action to rectify the

effects. Hi-Voltage, 12 P.3d at 1078 n.9. The California court

also cited United States v. Paradise, 480 U.S. 149, 177 (1987),

in which this Court

expressly approved a judicial decree that included a

racial quota for future promotions by the Alabama

Department of Public Safety. Because the order was

narrowly tailored to redress “pervasive, systematic,

and obstinate discriminatory conduct of the

Department” (id. at p. 167), it did not offend equal

protection even though none of the beneficiaries had

experienced promotional discrimination.

Hi-Voltage, 12 P.3d at 1078 n.9.

16

Similarly, in Sheet Metal Workers, 478 U.S. at 445, this

Court held that Title VII “does not prohibit a court from

ordering, in appropriate circumstances, affirmative race-

conscious relief [in the form of fixed union membership goals]

as a remedy for past discrimination” even if it may benefit

individuals who were not identified victims of such

discrimination. And in Firefighters v. Cleveland, 478 U.S. 501

(1986), this Court ruled that a consent decree requiring race-

conscious promotions did not violate Title VII even though

beneficiaries had not suffered discrimination. In reaching this

result, a plurality of the court construed Title VII not only to

guarantee equal employment opportunities but to “foster” them

as well. Sheet Metal Workers, 478 U.S. at 448. But Justice

O’Connor observed that “the plurality offers little guidance as

to what separates an impermissible quota from a permissible

goal.” 478 U.S. at 494 (O’Connor, J., concurring and

dissenting). Hi-Voltage, 12 P.3d at 1078-79.

The California court found that these later cases relied

ona

justification [that] replaced individual right of equal

opportunity with proportional group representation.

Although pursued for the purpose of eliminating

invidious discrimination, history reveals that this

prevailing social and political norm had its parallel

in laws antedating the Civil Rights Act, when

government could legally classify according to race.

(See Van Alstyne, supra, 46 U. Chi. L.Rev. at 797-

803.)

Hi-Voltage, 12 P.3d at 1079.

E. California Returns to Color-Blind Jurisprudence

Hi-Voltage noted that the argument in favor of the 1996

California Civil Rights Initiative stated in part: “A generation

ago, we did it right. We passed civil rights laws to prohibit

pe cacti Le OE OT —

17

discrimination. But special interests hijacked the civil rights

movement. Instead of equality, governments imposed quotas,

preferences, and set-asides.” Hi-Voltage, 12 P.3d at 1082. The

California Supreme Court found that in adopting Proposition

209 the people of California intended to put back into place the

historic “Civil Rights Act and equal protection that predated”

Weber, 443 U.S. 193, and Bakke, 438 U.S. 265. That is “an

interpretation reflecting the philosophy that ‘however it is

rationalized, a preference to any group constitutes inherent

inequality. Moreover, preferences for any purpose are

anathema to the very process of democracy.” Hi-Voltage,

12 P.3d at 1083.

[T]hose who supported and enacted “the historic

Civil Rights Act” sought to ensure equal opportunity

for all and eliminate race and sex from

decisionmaking in employment and other areas. By

1996, however, judicial construction of both the Act

and the equal protection clause had engrafted a series

of qualifications permitting race- and sex-conscious

programs formulated to remediate the lingering

effects of past discrimination or conspicuous

imbalance in the work force. [T]he voters

intended . . . essentially a repudiation of the

decisional authority that permitted such

discrimination and preferential treatment

notwithstanding antecedent statutory and

constitutional law to the contrary.

Hi-Voltage, 12 P.3d at 1086-87.

Amici submit that the California court’s interpretation of

civil rights law is the proper one. The meaning and intent of

equal protection, whether in that state’s constitution, the

Fourteenth Amendment, or the Fifth Amendment, is one that

prohibits both discrimination and preferences on the basis of

race. The periods of deviation from that principle, whether in

18

Dred Scott and Plessy or in Weber and Fullilove, are

unfortunate aberrations based on ill-considered goals. Amici

urge this Court to return the nation to the true concept of equal

protection in which no individual is burdened or benefited on

the basis of race.

THE STATUTORY RACE

PREFERENCES FAIL THE CROSON TEST

A. The Statutes’ Findings Fail the Croson

Mandate To Identify Specific Discrimination

This Court held in City of Richmond vy. J.A. Croson Co.,

488 U.S. at 493, that the strict scrutiny test is necessary to

ensure that the remedy chosen fits the legislative body’s

“compelling goal so closely that there is little or no possibility

that the motive for the classification was illegitimate racial

prejudice or stereotype.” The Court then spelled out the

rationale for this requirement:

Classifications based on race carry a danger of

stigmatic harm. Unless they are strictly reserved for

remedial settings, they may in fact promote notions

of racial inferiority and lead to a politics of racial

hostility. (“[P]referential programs may only

reinforce common stereotypes holding that certain

groups are unable to achieve success without special

protection based on a factor having no relation to

individual worth.”).

Id at 493-94 (citation omitted).

Croson held that “a generalized assertion that there has

been past discrimination in an entire industry provides no

guidance for a legislative body to determine the precise scope

~ of the injury it seeks to remedy. It ‘has no logical stopping

point.’” Jd. at 498. Yet the federal government has enforced

a race preference program at least since the enactment of the

19

Public Works Employment Act of 1977, Pub. L. No. 95-28,

§ 103(f)(2), providing that 10% of each grant shall be expended

for Minority Business Enterprises. See Fullilove. There has

been “no logical stopping point” to these race-preference

programs and unless this Court acts none is foreseen.

Justice Kennedy’s conclusion in Croson, 488 U.S. at 519-

20, applies directly to the federal race-preference programs:

The ordinance before us falls far short of the

standard we adopt. The nature and scope of the

injury that existed; its historical or antecedent

causes; the extent to which the city contributed to it,

either by intentional acts or by passive complicity in

acts of discrimination by the private sector; the

necessity for the response adopted, its duration in

relation to the wrong, and the precision with which

it otherwise bore on whatever injury in fact was

addressed, were all matters unmeasured, unexplored,

and unexplained by the city council. We are left

with an ordinance and a legislative record open to

the fair charge that it is not a remedy but is itself a

preference which will cause the same corrosive

animosities that the Constitution forbids in the whole

sphere of government and that our national policy

condemns in the rest of society as well. This

ordinance is’ invalid under the Fourteenth

Amendment.

Because the federal program utterly fails to meet this

standard, it is not a remedy but a preference and is forbidden by

the equal protection component of the Fifth Amendment.

Bolling v. Sharpe, 347 U.S. 497, 499 (1954).

20

B. The Federal Race-Preference Program Is Not

Remedial but Merely Seeks Racially Proportional

Participation

Lutheran Church-Missouri Synod v._ Federal

Communications Commission, 141 F.3d 344 (D.C. Cir. 1998),

was a Fifth Amendment Equal Protection challenge to the

Federal Communications Commission’s (FCC) “equal

employment opportunity (EEO),” id. at 346, programs imposed

on radio broadcasters. The court found that “[i]f the regulations

merely required stations to implement racially neutral recruiting

and hiring programs, the equal protection guarantee would not

be implicated.” Jd. at 351. However, the court found that the

EEO regulations extended beyond outreach efforts to influence

ultimate hiring decisions.

The crucial point is not, as the [government]

argue[s], whether they require hiring in accordance

with fixed quotas; rather, it is whether they oblige

stations to grant some degree of preference to

minorities in hiring. We think the regulations do just

that. The entire scheme is built on the notion that

stations should aspire to a workforce that attains, or

at least approaches, proportional representation.

Id. at 351-52.

As here, the government insisted that its program

should be regarded as if it did no more, or not

significantly more, than seek non-discriminatory

treatment of women and minorities. That argument

. . . presupposes that non-discriminatory treatment

typically will result in proportional representation in

a station’s workforce. The Commission provides no

support for this dubious proposition.

Id. at 352.

-_sa

21

This “dubious proposition,” of course, is the whole basis

of the statutory race-preference program here at issue. The

circuit court in Lutheran Church held: “It cannot seriously be

argued that this screening device does not create a strong

incentive to meet the numerical goals.” Jd. at 353. Lutheran

Church therefore held the FCC regulations to be

unconstitutional. /d. at 356.

C. The Chosen Remedy of Preference

Lacks Any Nexus To, and Does Nothing

To Correct, the Purported Violation

Adarand emphasized: “Racial classifications are simply

too pernicious to permit any but the most exact connection

between justification and classification.” 515 U.S. at 229. This

passage was quoted by the Fifth Circuit in Walker v. City of

Mesquite, 169 F.3d 973, 982 (Sth Cir. 1999), which found:

“This means that a race-conscious remedy must be framed to

address the exact effects and harms of the discrimination at

issue.” Id.

Croson stated that if government had evidence that

nonminority contractors were systematically excluding

minorities, then government “could act to dismantle the closed

business system by taking appropriate measures against those

who discriminate on the basis of race or other illegitimate

criteria. In the extreme case, some form of narrowly tailored

racial preference might be necessary to break down patterns of

deliberate exclusion.” Croson, 488 U.S. at 509 (emphasis

added and citations omitted).

This passage makes clear that federal agencies’ duty is to

act against the actual practitioners of discrimination, not merely

strike out blindly against the entire class of construction

contractors. Asa last resort, only “in the extreme case” may the

government craft some form of narrowly tailored race

preference. Here, the government enforces its race and sex

preferences not in extreme cases and as a last resort but in all

22

cases and as a first resort. The preference is tailored to nothing

other than race balancing; there is no attempt to address and

correct any actual instances of race discrimination.

D. The Race-Preference Statutes Make No

Attempt To Restrict Their Benefits To

Victims of Past Discrimination

The courts have strongly suggested that race-conscious

relief should be targeted to actual victims of discrimination.

Coalition for Economic Equity v. Wilson, 122 F.3d 692 (9th Cir.

1997), held that when “a state gives the identified victims of

state discrimination jobs or contracts that were wrongly denied

them, the beneficiaries are not granted a preference ‘on the

basis of their race’ but on the basis that they have been

individually wronged.” /d. at 700 n.7.

Wessmann v. Gittens, 160 F.3d 790 (1st Cir. 1998),

overturned a Boston public school’s race-conscious policy in

part because of its lack of victim-specificity. The court found,

“there is no reason to assume that granting a remedy to one

member of a particular race or ethnic group comprises a

condign remedy for harm done to another, especially when

those who have been harmed are easily identifiable and still

within the institution that allegedly suffers from the vestiges of

past discrimination.” /d. at 808 (citation omitted).

By the same token, there is no reason to assume that the

federal program of granting of preferences to one DBE is an

appropriate remedy for harm done to another DBE, especially

since any victims of actual discrimination in federal contracting

could easily be invited to come forward and be recompensed by

the wrongdoer, whether state or local agency or prime

contractor. Croson held that “the interest in avoiding the

bureaucratic effort necessary to tailor remedial relief to those

who truly have suffered the effects of prior discrimination

cannot justify a rigid line drawn on the basis of a suspect

classification.” 488 U.S. at 508. Croson further taught that the

|

23

desire to increase the representation of minorities, “standing

alone, was not merely insufficiently compelling to justify a

racial classification, it was ‘discrimination for its own sake.’”

Id. at 496.

+

CONCLUSION

The key factor ignored by the defenders of preference for

race-based groups is “the principle that the Fourteenth

Amendment guarantees equal protection to individuals and not

to groups.” Coalition, 122 F.3d at 704. The Equal Protection

component of the Fifth Amendment extends this guarantee to

the actions by the federal government. Bolling v. Sharpe, 347

U.S. at 499. The federal program of group preference in

derogation of individual rights violates this constitutional

command. For the reasons set forth herein, the decision of the

Tenth Circuit should be reversed.

DATED: June, 2001.

Respectfully submitted,

JOHN H. FINDLEY

Counsel of Record

SHARON L. BROWNE

Pacific Legal Foundation

10360 Old Placerville Road,

Suite 100

Sacramento, California 95827

Telephone: (916) 362-2833

Facsimile: (916) 362-2932

Counsel for Amici Curiae

Pacific Legal Foundation,

American Civil Rights Institute,

and Center for Equal Opportunity