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Disparity Studies Do NOT Justify Contracting Preferences

Guest Editorial
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          Last December the U.S. Commission on Civil Rights empanelled four experts to provide testimony regarding the strengths and weaknesses of so-called disparity studies in determining the need for racial preferences and quotas in government contracting.

          One of the expert panelists was Roger Clegg, President of the Center for Equal Opportunity.  In his analysis, below, Roger recaps his testimony before the Commission, and urges that government contracting be equally accessible to businesses large and small of ALL races and ethnicities with preferences for none.

Ending Contract Discrimination Shouldn't Require Contract Discrimination!

(Opinion and Analysis
By Roger Clegg 08-03-06)

          The U.S. Commission on Civil Rights has posted on its website its latest Briefing Report, "Disparity Studies as Evidence of Discrimination in Federal Contracting." The report grew out of testimony it had heard from four experts last year on this riveting topic.

            Well, actually, it is pretty interesting.  Disparity studies, you see, purport to prove through statistical imbalances in the number of government contracts awarded that companies owned by this or that racial minority are discriminated against.  The government agencies that commission the studies--especially at the state and local level--want them to prove discrimination, because this then allows the politicians to claim that the only solution is to give preferences (a set-aside or perhaps something less dramatic) to companies owned by this or that racial minority.  And this, in turn, is thought to be good politics.

            The trouble is that these studies consistently fail to prove what they claim to prove, because they are so shoddily done.   This was pretty much the consensus view among the experts (including yours truly), even the most liberal one, a Yale Law School professor.  The latter acknowledged that there was a lot of sloppy work in this area, although he said that once upon a time a good study was done and that someday it might happen again.

            Anyway, my pitch was that, even if you could do a study that showed discrimination, it would not justify an institutionalized system of racial preferences (a.k.a. affirmative action) in the other direction.  My point was that the courts have made clear that governments can use racial preferences only as a last resort, and that in the year 2006, there will always be better and more direct ways of ending racial discrimination that piling more discrimination on top of it.

          If companies are being excluded from bidding because of unrealistic or irrational bonding or bundling requirements, for instance, then those requirements should be changed for all companies, regardless of the skin color of the owner.  If companies that could submit bids are kept in the dark about bidding opportunities and are not doing so, then the publication and other procedures used in soliciting bids should be opened up--but, again, to all potential bidders, not just some.  And, finally, if it can be shown that government bids are being denied to the lowest bidder because of that bidder's race, then there should be put in place safeguards to detect discrimination and sanctions to punish it--but, again, those safeguards and sanctions should protect all companies from racial discrimination, not just some.

            Contracts are not like hiring, promoting, or even university admissions, where there is an irreducible and significant amount of subjectivity in the decision making.  Contracting is an area that can be made very transparent and where this transparency should make it relatively easy to detect and correct discrimination.

            Even if there could still, in theory, be a few cases of discrimination that go unremedied in the absence of racial preferences, there will be many more cases of discrimination that will result from the institutionalization of racial and ethnic preferences.

            The Yale professor and one of the Commissioners disagreed.

            No, no, said the professor, we still need to use racial preferences, and here's an example why.  When Marian Anderson was scheduled to sing at Constitution Hall in Washington, D.C., the Daughters of the American Revolution wouldn't allow it because she was black.  So the federal government stepped in and made it possible for her to give her performance at the Lincoln Memorial instead. Q.E.D.

          Huh?  We'll put aside the fact that this has nothing to do with government contracting and that it took place in 1939 (and it is unthinkable that such a thing could happen today).  It also has nothing to do with racial preferences.  The federal government didn't create a special preference so that black singers could sing at the Lincoln Memorial rather than white singers.  Instead, they remedied the specific discrimination that Marian Anderson suffered, without creating a racially preferential program--exactly what I was urging.

            No, no, said the Commissioner, we still need racial preferences, and here's an example why.  Suppose a company had for years and years refused to hire anyone except white male statisticians.   It should be required to give a preference to statisticians who are not white males.   Q.E.D.

          Huh (again)?  This time we'll put aside the fact that, since it has been illegal to engage in such discrimination since 1964, it is rather unlikely that such a blatantly discriminatory policy could be found to exist.  If such a policy were found, however, why would it make sense to require the company to hire X percent blacks from now on, and Y percent minorities other than blacks, and Z percent women?  The right thing for the court to order would be for the company to stop from engaging in discrimination on the basis of race, ethnicity, or sex against anyone, and just hire the best qualified person--again, exactly what I would urge in the contracting context as well.

          Contracting preferences are invariably justified as “remedial,” but the hearings before the Civil Rights Commission made clear that this justification just won't wash.  The Commission's report is critical of the disparity studies currently used to justify preferences, but it doesn't go far enough: No matter how carefully a disparity study is written, in the year 2006 there will always be a better remedy than an additional layer of discrimination.

            Federal, state, and local governments should scrap their preference programs.  If they won't, they deserve to be sued, and they deserve to lose. -30-

Roger Clegg is president of the Center for Equal Opportunity in Sterling, Virginia.

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