The “Disadvantaged Business Enterprise” program, run by the U.S. Department of Transportation and adopted by states and cities across the country, is one of the most atrociously corrupt government endeavors in existence. Opportunists of all colors have used the racial set-aside law to win billions of dollars worth of federal contracts for themselves and their friends under the guise of being “victims.”
Every week brings new headlines of white- and minority-owned firms colluding as fronts to rip off taxpayers. Just last week, a Los Angeles Superior Court jury ordered construction giant Tutor-Saliba Corp. to pay more than $29.5 million to the Metropolitan Transportation Authority for using companies that posed as minority subcontractors to meet diversity guidelines. In San Francisco, a senior city hall official in charge of “equal opportunity” programs was indicted for conspiring with a contractor accused of falsely qualifying for $56 million in minority DBE subcontracts. And earlier this month, the Department of Transportation received a request from a Louisiana official to investigate the abuse of DBEs by the city of New Orleans. A local news investigation exposed rampant cronyism in the awarding of DBE contracts.
Late last week, the Bush administration quietly filed a legal brief in support of this foul enterprise. President Bush’s defense of DBEs puts him on the same side as the Clinton-Gore legal team, the NAACP and affirmative action bureaucrats who continue to flout the federal Constitution’s guarantee of equal protection under the law. Many Republicans in the Beltway establishment refuse to criticize the administration’s stand. They are too busy trying to win over minority voters with promises of amnesty for illegal aliens and more federal handouts based on race and ethnicity.
Other conservative analysts say the case now before the U.S. Supreme Court is weak, and that President Bush is simply waiting for a better opportunity to show that he truly opposes the racial spoils system championed by his Democratic predecessors.
The case at hand is not weak. In fact, it is a textbook example of how fraudulent and pernicious race-based “affirmative action” really is. In 1989, the federal government took bids on a Colorado transportation project involving the installation of highway guardrails. Two subcontractors made bids: Adarand Constructors Inc. and the Gonzales Construction Co. Although Adarand made the lowest bid, Gonzales won.
Why? Because Gonzales was a certified DBE. Even though there was no evidence that the Hispanic owner himself, or Hispanics in general, had ever suffered discrimination in the conduct of transportation-related business, Gonzales automatically qualified as “disadvantaged” simply because of his membership in a government-approved, politically correct victim group.
Federal law presumed that firms owned by individuals who were “a) women, b) black, c) Hispanic, d) Native American, e) Asian-Pacific American, (or) f) Asian-Indian American” were “disadvantaged.” Adarand’s white owner, Randy Pech, got left in the cold, while the prime contractor snagged a fat cash bonus of $10,000 for choosing the minority firm.
Adarand sued in 1990, claiming that the contracting programs gave illegal preferences to these certified DBE owners. In its 1995 decision in Adarand v. Pena, the U.S. Supreme Court agreed. The high court ruled that federal racial classifications ”must serve a compelling government interest and must be narrowly tailored to further that interest.” The race-based bonuses were dropped, and the new Bush brief argues that paperwork reforms make the program constitutionally acceptable. But the rotten core remains: The law still presumes that firms owned by minorities and women deserve automatic special preferences for being “disadvantaged.” In practice, the program continues to enshrine different rules for different races — strict, race-based preferences for higher-bidding minorities over lower-bidding, white-owned firms.
During his campaign, President Bush said he most admired the thinking of Supreme Court Justice Clarence Thomas. Too bad his administration’s Adarand brief ignores what Justice Thomas said when the high court first heard the case in 1995: “It is irrelevant whether a government’s racial classifications are drawn by those who wish to oppress a race or by those who have a sincere desire to help those thought to be disadvantaged … In my mind, government-sponsored racial discrimination based on benign prejudice is just as noxious as discrimination inspired by malicious prejudice. In each instance it is racial discrimination, plain and simple.”
What part of Justice Thomas’ sound thinking doesn’t Bush understand?
