The Magazine

Let’s Set Aside Set-Asides

In government contracting, some are more equal than others.

Jun 16, 2014, Vol. 19, No. 38 • By TERRY EASTLAND
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Of the two arguments, the delegation (or, more precisely, nondelegation) argument might interest more justices. But the real issue in the case concerns equal protection and whether disparity studies can sustain racially preferential departures from that constitutional principle.

In 1989 and 1995 cases, the Court, with Sandra Day O’Connor writing, effectively sanctioned the use of disparity studies to make “an inference of discriminatory exclusion” that preferences could remedy—ironically doing so in cases striking down preferences in contracting. An entire disparity studies industry has emerged since, and the Roberts Court may wish to review that development and its implications. After all, as Rothe knows from its rather full experience with these matters, disparity studies are often methodologically flawed, and their premise—that statistics can somehow prove discrimination—remains doubtful.

The question remains, moreover, whether racial preferences, inherently discriminatory as they are, can ever be the right response even to ostensible proofs of discrimination using statistics. The contracting bid process, in particular, is transparent, and acts of bias thus can be identified and corrected. As Chief Justice Roberts wrote in a different context in 2009, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

Terry Eastland is an executive editor at The Weekly Standard.

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