The Bush Administration Is Right About Adarand Constructors Vs. Norman Mineta

The reaction of some conservatives to the brief filed by the Bush administration in response to the case of Adarand Constructors, Inc.v. Norman Y. Mineta, Secretary of Transportation, is just the latest example of how intolerant, extreme and imbalanced many conservatives have become on the issue of race. While they like to style themselves as race-neutral and color-blind while depicting Liberals and Blacks as preoccupied with race, conservatives are actually race-averse, penalizing anyone who admits that racism has existed in the past, is still with us in the present and has left a legacy of inequality, in many spheres - that can be measured today.

Their rejection of the Bush brief shows not just that many Republicans and Conservatives are even more prone to eat their own on race-related issues than they are on other issues but also that they are not even willing to reason with anyone who recognizes racism. To conservatives, the approach to dealing with race amounts to one of two slogans: “Been there done that” or “get over it”. There is a no-tolerance policy for those who wish to review what slavery and racial discrimination have actually wrought in this country, as conservatives dismiss the issue as if they have a Ph D. in the Black experience in America and can stand to hear no more about a subject that they know every nuance about. The implication is that to discuss the matter of race any further demonstrates that one may be emotionally imbalanced, or perhaps even, a “race-hustler” or “poverty pimp”. And to broach the subject of the economic impact of slavery and even hint that nothing has been done to effectively diminish the capital accumulation gap that exists between Whites and Blacks as a direct result of slavery is to almost automatically put oneself on the short list of suspected race-manipulating shakedown artists.

The most recent event that caused us to reflect over the apparent need in conservatism to not discuss race was the Adarand brief filed 2 Fridays ago by a team of Bush administration lawyers led by Ted Olson, the Solicitor General, who is also of Bush v. Gore fame (he was one of Bush’s lawyers during the vote controversy).

The Adarand case spans for over a decade now. In summary, the case reads like this (the first portion of what follows is drawn partly from the 1995 Supreme Court decision):

In 1989, the Central Federal Lands Highway Division (CFLHD), which is part of the United States Department of Transportation (DOT), awarded the prime contract for a highway construction project in Colorado to Mountain Gravel & Construction Company. Mountain Gravel then solicited bids from subcontractors for the guardrail portion of the contract. Adarand, a Colorado-based highway construction company specializing in guardrail work, owned by a White man,submitted the low bid. Gonzales Construction Company also submitted a bid.

The prime contract's terms provide that Mountain Gravel would receive additional compensation of as much as 10% of the bid if it hired subcontractors certified as small businesses controlled by "socially and economically disadvantaged individuals," Gonzales was certified as such a disadvantaged business enterprise (DBE); Adarand was not. Mountain Gravel awarded the subcontract to Gonzales, despite Adarand's low bid, and Mountain Gravel's Chief Estimator has submitted an affidavit stating that Mountain Gravel would have accepted Adarand's bid, had it not been for the additional payment it received by hiring Gonzales instead.

In 1995, the Supreme Court passed on making a direct ruling on the contracting policy itself but took the opportunity to mandate that affirmative action programs respect strict limits and that any assistance to minority-owned firms be narrowly-tailored to meet a compelling government interest. The five-justice majority made up of the conservative bloc of Chief Justice William Rehnquist and Justices Sandra Day O'Connor, Antonin Scalia, Anthony Kennedy and Clarence Thomas ruled that federal affirmative action could continue but only if it was tailored to serve a compelling government interest.

The Clinton administration retooled the program, the Transportation Department dropped financial incentives for contractors to use minority subcontractors but the DBE program still presumed that minority-owned firms are disadvantaged, but mandated that participating companies must document such disadvantage. In 1998, Congress included the program in legislation authorizing federal highway programs. The U.S. Court of Appeals for the Tenth Circuit upheld the changes as proper and constitutional. But Adarand has challenged the Tenth Circuit’s ruling again and the Supreme Court will hear the case after October when its next term begins.

We agree with conservatives and Adarand to the extent that mindless quota programs are inappropriate. We do not support quotas of such nature because they guarantee an outcome while we believe that only an equal opportunity is necessary. There were problems with the DBE program as it was previously structured and the program led to abuses and a further distortion of a process and industry that was already hampered by documented racism, which affected bonding for Black-owned construction companies as well as their access to capital and credit.

But the most troublesome aspect of the program – the financial compensation awarded to contractors simply for hiring disadvantaged contractors – has been eliminated and the provisions of the program were tailored by the Clinton administration and the Republican Congress to meet the requirements of what the Supreme Court set forth. But even with that provision gone, Adarand continued with its case. As the Bush brief states, “ The lawsuit has outlived the program that provoked it.”

The Bush administration brilliantly lays out the numerous flaws of the Adarand argument not the least of which is that the Adarand contentions are now baseless in light of the changes that have been made to the DBE program. Still, that is not enough for the Conservative extremists who expect the Bush administration to take this opportunity to not just dismantle the DBE program but affirmative action itself.

But if one reads the Bush brief, it is difficult to argue with the almost seamless logic of their position, which is that discrimination has negatively impacted Blacks and others in the highway construction business and that as a result it is in the government’s interest to be sure that taxpayer dollars do not go to the furtherance of such a legacy. The Bush brief explains in great detail the lengths to which the program goes to use race-neutral criteria in order to remedy the problem. It is interesting to note that not a single Conservative-leaning periodical, newspaper or opinion editorial has parsed the language of the Bush brief. Instead they quote little more than a sentence or two from the 50-page brief and even attribute quotes to the Bush brief that actually find their origin in older cases.

The reason they don’t parse the brief and critically analyze it is because they can’t overcome the arguments contained within it. They argue against affirmative action in theory while the Bush administration, true to the request of the Supreme Court, argues for the legitimate narrowly tailored government interest in using race-conscious criteria in attempting to rectify inequalities caused by racial discrimination.

We have read the entire brief and after doing so it is not hard to understand why, now, after a full week since the brief was filed, no Conservative opinion leaders have engaged the crux of its arguments. Here are a few portions of the brief that we think indicate why such legitimate intellectual engagement has not occurred. The “petitioner” is Adarand.

Here area few excerpts:

“DOT’s current DBE program is not unconstitutional on its face. DOT has discontinued the SCC program that caused petitioner’s alleged injury, and petitioner alleges no specific injury from the DOT’s current regulations. Accordingly, petitioner can mount only an abstract facial challenge, and cannot prevail unless it demonstrates that TEA-21’s DBE provisions and the implementing regulations are incapable of constitutional application.

Petitioner has narrowed its challenge to DOT’s direct federal procurement activities. However, DOT does not employ any race-conscious measures in making direct procurement decisions in any jurisdiction in which petitioner does business. Accordingly, petitioner lacks standing to challenge the only program it purports to challenge. Indeed, the court of appeals specifically held that petitioner lacks standing to challenge the statutory petitioner now targets, and petitioner has never challenged that holding. It is hard to imagine a more abstract vehicle for this Court to address the serious constitutional issues raised by petitioner.

DOT’s DBE program promotes the “compelling interest in assuring that public dollars, drawn from the tax contributions of all citizens, do not serve to finance the evil of private prejudice.” City of Richmond v. J.A. Croson Co., 488 U.S. 469, 492 (1989) (plurality opinion of O’Connor, J). Petitioner concedes (BR.22) that the use of race-consciousness measures as a “last resort effort to remedy private discrimination’” constitutes a “possible justification” for race-conscious government action. Petitioner, therefore, concentrates its attack not on the sufficiency of the government’s interest, but on the adequacy of the record before Congress. But Congress authorized the Secretary to adopt a DBE program against a backdrop of extensive evidence of public and private discrimination in highway contracting. Congress likewise authorized the DBE program only after race-neutral efforts to improve access to capital and ease bonding requirements had proven inadequate. Congress then reauthorized the DBE program on three separate occasions, each time after further investigation…

Discrimination, not race, is the key to the DBE status. For example, if a firm’s owner exceeds regulatory net-worth limits, the firm cannot qualify as a DBE, no matter what the owner’s race. Second, state and local recipients of federal aid must assess the local market to determine whether there is need for race-conscious remedies to redress the effects of discrimination in their jurisdiction. Even where there is a need for race-conscious remedies only s a last resort. Third, the regulations have built-in flexibility to allow aid recipients to address the specific problems confronted in a particular jurisdiction. For example, the regulations make most regulatory provisions waivable. Although petitioner suggests that certain aspects of those regulations will prove ineffectual and that others deviate from the statutory design, neither of those concerns is properly presented in this facial challenge.

Finally, petitioner argues that, even with those regulatory safeguards, the use of the statutory race-based presumption of disadvantage by itself renders the entire program unconstitutional. But this Court has never suggested that the government may not take race into account in attempting to identify the effects of racial discrimination. In jurisdictions where race-neutral measures suffice, the statutory presumptions of disadvantage serve only to help identify under-utilization of the DBEs that may evidence discrimination or its effects. In other jurisdictions, the presumption may result in providing contracting opportunities to businesses owned by individuals who have certified (in a notarized document and subject to the possibility of criminal prosecution) that they have suffered the effects of discrimination, but that is no basis for invalidating the statute and the Secretary’s regulations on the face…

The enormous body of evidence before Congress, accumulated over 30 years, establishes the compelling nature of Congress’s interest in reauthorizing the DBE program. Throughout the 1970s, a Permanent Select Committee of the House of Representatives conducted extensive hearings on the effects of discrimination on the distribution of contracting opportunities in a variety of industries…

Congress likewise gathered extensive evidence of the incidence of discrimination in the specific context of highway contracting…

The extensive record before Congress included specific evidence of the problems confronted by DBEs. With respect to access to necessary capital, minority applicants generally and minority applicants in the construction industry in particular were denied bank loans at a higher rate than non-minorities with identical collateral and credentials…A Study of the construction industry supported by the U.S. Bureau of Census and National Science Foundation found that “blacks, controlling for borrower risk, are less likely to have their business loan applications approved than other business borrowers,” and generally receive smaller loans when approved."

Remember this was all contained in the Bush administration brief. Such language is anathema to conservative orthodoxy. You can admit that racial discrimination exists but you just can’t admit that it results in Blacks losing economic and employment opportunities. So, discrimination is real to conservatives except one is never allowed to show its impact in dollars and cents. Some conservatives go even further with their race-less view of economic determinism and completely reject the notion that Blacks are denied access to capital for discriminatory reasons. Paul Craig Roberts exemplified that spirit in a recent article at Townhall.com when he wrote about the Rev. Jesse Jackson “shaking down" various corporations, with an assist from Bush economic adviser Larry Lindsay:

“For years, the only function of the Civil Rights Division of the U.S. Department of Justice (sic) has been to help "preferred minorities" shake down businesses. During the Clinton administration, President Bush's present economic advisor, Larry Lindsey, teamed up with Jackson and Assistant Attorney General Deval Patrick to force financial institutions to give blacks mortgages at below market interest rates and to pay a portion of the required down payment.

All sorts of false charges were made against the banks, which had done nothing but treat blacks the same way they treated whites. People with good credit got loans; those judged to be too big a risk were turned down. The fact that a larger percentage of white applicants than blacks got loans reflected nothing but the fact that a larger percentage of whites had good credit.

This ordinary business fact was purposely misconstrued by the gang of extortionists who alleged that banks were favoring whites and discriminating against blacks. Lindsay could not be an economist and fail to understand that banks don't turn down good loans because of skin color. A bank that turned down a creditworthy black customer in order to lend to a high risk white customer would not long be in business."

Roberts comfortably dismisses that there exists significant discrimination in the extension of loans, credit and capital to Blacks but he does not engage the research and evidence compiled by the U.S. Congress, in Democratic and Republican hands over the last 30 years. The Bush lawyers were confronted by such data and analysis and had to respond accordingly. That is the difference between being a conservative ideologue and conservative who has to become the leader of all Americans. Sometimes the facts don’t support your most intensely held positions and you have to make decisions in light of new information that you had previously not been exposed to or had an intellectual need to avoid.


Conservatives have a three-layered approach to racism that no liberal or Black civil rights leaders, for a variety of reasons, have not been able to handle, politically. Conservatives generally hold to one of three propositions 1) racial discrimination no longer exists 2) if racial discrimination exists it is negligible 3) if racism does exist government has no responsibility to do anything about it.

Underneath these three propositions is the belief that somehow race is an illegitimate consideration. Of course this is after Blacks endured 300 years of chattel slavery and really only gained civil rights in the last 40 years. For some reason, conservatives run from race like the plague. Even to the point that they deny documented evidence in Republican-controlled Congress; the ruling of conservative Supreme Courts and now the Bush administration’s recognition that race is a significant factor distorting America’s free-enterprise system and that it is appropriate, in certain cases to use race-conscious remedies.

Perhaps, Ward Connerly best demonstrated this conservative knee-jerk reaction to the subject when, on Fox News Sunday several months ago, he said, “We must move away from race and toward the natural”, as if race is not natural. We wrote about this conservative inconsistency in an editorial earlier this year entitled, God Conservatives and Race. Not even God shares or justifies the conservative need to avoid race issues.

We don’t even believe the U.S. Constitution justifies the conservative attitude toward race, which borders at times on paranoia. To think that many conservatives spend more time condemning a race-conscious remedy than they do on the racial discrimination that preceded it shows how many in that group judge the matter out of context. It seems as if they do not even want race considered, which would mean that the government would be stripped of its ability to stop or condemn it.

The Bush brief astutely recognized this device. Ted Olson and the Bush lawyers wrote:

“But the government has a responsibility to identify and remedy racial discrimination. See, e.g., U.S. Const. Amend. XIV, 5;U.S. Const. Amend XV,2. The government could not discharge that duty without using race-conscious mechanisms for identifying whether racial discrimination exists. Even the gathering of race-conscious data involves a degree of race-conscious government action that would be unnecessary in a perfectly color-blind world. But Congress clearly envisioned that race-based presumptions would aid in the identification of discrimination and its effects. The use of those criteria for that purpose, without more, does not implicate constitutional concerns unless and until the need for such remedies has been identified."

How can conservatives argue with that type of logic in Bush’s argument? It is as if race is the only area in the conservative worldview where the cause and effect are reversed and the underlying problem (racial discrimination) is now said to be the creation of a response (narrowly-tailored race-conscious remedies) to that problem.

Instead of admitting that Adarand’s case against the government has more holes in it than Swiss cheese and that the Bush administration has taken a balanced position on the matter, the Conservative race-extremists attempt to skirt the details of the case, ignore the Bush brief, and use the opportunity to cry at the top of their lungs, “Affirmative Action Must End”!

Fortunately, it does not appear that the Bush administration was fazed by their mental bullying. Hopefully that will remain to be the case.

The Bush administration’s brief on Adarand v. Mineta provides one of the best articulations made in the political realm, in recent memory, of how racial discrimination distorts American democracy and the economic marketplace. It is an argument that is reasoned and well-thought out. Too bad that so many of Bush’s conservative brethren did not read it, avoided it, or pooh-poohed it with fallacious arguments.

It is this type of reaction from an influential wing of American politics that has lead us to believe with each passing day it becomes more likely that America’s racial tensions will have to reach the point of violence and civil unrest before many will honestly deal with the legacy of slavery and racial discrimination. When the Conservative-in-Chief is mocked and shouted down for a reasonable position which recognizes the harsh realities of racial discrimination, it is a significant sign that denial is reaching its apex.

This is only the quiet before the storm...

Cedric Muhammad

Monday, August 20, 2001

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