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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0425%3A15

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2001
- **Citation:** 534 U.S. 103

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0425%3A15. Public record. Not legal advice.