REPORT FINDS AGENCIES FAIL TO IMPLEMENT RACE-NEUTRAL ALTERNATIVES
Procurement Effort Lacks Nondiscrimination Protections and Enforcement
|[U.S. Commission on Civil Rights, Washington DC
08-05-05] The United States Commission on Civil Rights, in an
examination of federal agency procurement practices, found that the government fails to
seriously consider race-neutral alternatives as the Constitution requires.
The Commission's 185 report diplomatically criticizes the entire federal government for
its rampant use of race-based contracting policies.
| The Commission's
report -- "Federal Procurement After Adarand" -- describes the Supreme Court's
1995 decision in Adarand, which held that any federal procurement programs that base
decisions on racial and ethnic factors must serve a compelling government interest and be
narrowly tailored to serve that purpose.
The Court also has
said that agencies must consider race-neutral alternatives. In the report, the
Commission examined relevant aspects of seven agencies' procurement programs: the
Departments of Defense, Transportation, Education, Energy, Housing and Urban Development,
State, and the Small Business Administration.
agencies are disregarding their constitutional obligation to seriously consider
race-neutral alternatives," said Gerald A. Reynolds, Commission Chairman. "After
ten years, they are still not complying with the Supreme Court's mandate, and they are not
even complying with the Clinton Administration's guidance on race-neutral
alternatives." Chairman Reynolds explained, "Federal agencies do not
independently evaluate, conduct research, collect data, or periodically review programs to
determine whether race-neutral strategies will provide an adequate alternative to
|Pro-quota groups such as "civilrights.org" have been
quick to condemn the Commission's recommendations for race-neutral contracting policies:
Hysterical, omigod "we're going to lose our quotas!" headline from the pro-quota
group "civilrights.org" regarding the Commission's recommendations.
continues: "Instead, they continue to rely primarily on SBA-run programs, such
as 8a, to achieve diversity in the contract awards they make. This does not meet the
Supreme Court's standard for strict scrutiny."
Significantly, the report also finds that federal law does not specify protections for
contractors who are the victims of discrimination, nor does any agency possess enforcement
authority against violations.
Among the Commission's
recommendations, their report:
||Urges the Justice Department to develop guidance for agencies on how to
implement race-neutral alternatives,
||Asks the White House to assemble a task force charged with determining
what data agencies need to collect in order to measure and assure the appropriateness of
race-neutral or race-conscious procurement programs, and
||Asks Congress to enact legislation expressly prohibiting race
discrimination in federal contracting, and establishing effective enforcement procedures.
The Commission passed the report at its July 22, 2005 meeting. The report contains a
dissenting statement from one Commissioner.
The complete 185 page report of the Commission is available from either of the following
two links (in Adobe Acrobat format):