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| Contact: | Sharon Browne
Principal Attorney
Pacific Legal Foundation
slb@pacificlegal.org
(916)419-7111 | Ray Young
Senior Vice President
Halldin Public Relations
ray@halldinpr.com
(916)781-0659 | David F. Barton
The Gardener Law Firm
San Antonio
www.tglf.com |
Appeals Court Ruling Against Racial Quotas in Pentagon Contracts Apparently Will Stand; Administration Reportedly Won’t Appeal to Supreme Court Pacific Legal Foundation Calls Defeat of DOD’s Race-Based Contracts a "Win for Justice and Equal Opportunities"
SAN ANTONIO, Texas; February 11, 2009: The U.S. Department of Justice and the Department of Defense will not seek Supreme Court review of a November, 2008, federal appeals court ruling that struck down the Defense Department’s racial quota program in contracts, according to David F. Barton, counsel for the San Antonio company that successfully challenged the quotas.
Sharon L. Browne
PLF Principal Attorney |
“The Administration’s decision to let the Defense Department’s quotas in contracting program die is a victory for fairness, justice, and the principle of equal opportunity,” said Sharon L. Browne, principal attorney with Pacific Legal Foundation. PLF submitted briefing in support of the successful legal challenge to the contracting quotas, brought by Rothe Development Corporation of San Antonio.
“Government discrimination because of race or ethnicity is wrong,” said Browne. “This kind of bias sends a harmful message to people that their skin color is what defines them, and in the contracting sphere it undermines efficiency and drives up costs. Everyone who believes in the core values of civil rights and that the law should be color-blind, should welcome the demise of the Pentagon’s practice of tipping the balance by race in the use of public money.”
“No business should be denied a government contract, or equal treatment under federal law, because of the owner’s skin color,” said David Barton, the San Antonio, Texas, attorney who represented Rothe Development Corporation in the lawsuit against the Defense Department contracting quotas. “This is the important tenet that we have vindicated in this case. We are grateful to Pacific Legal Foundation for its valuable role in our fight for equal rights.” Congress originally enacted this race-based procurement program (10 U.S.C. § 2323) for the Department of Defense, NASA, and the Coast Guard in 1987. The program set a goal of having 5 percent of federal defense contracting dollars awarded to individuals or businesses designated as disadvantaged individuals – and it declared that Blacks, Asians, Hispanics, and Native Americans were automatically to be presumed to be disadvantaged.
The program was challenged by Rothe Development Corporation, a low-price, technically qualified, acceptable bidder for a federal contract, after it was denied an award in 1998 because Rothe’s owner was Caucasian.
On November 4, 2008, after 10 years of repeated appeals, the Federal Circuit Court of Appeals struck down the program as a violation of the Equal Protection Clause of the Fourteenth Amendment. The court found that Congress did not have sufficient evidence to establish that the government had a compelling interest for the quota program; specifically, there was not sufficient evidence of past discrimination against the targeted minority groups in Defense Department contracts to warrant any kind of “reverse discrimination” as a remedy.
“DOD did not cite a single instance of alleged discrimination by DOD ... of awarding a prime contract, nor to a single instance of alleged discriminating by a private contractor identified as the recipient of a prime defense contract,” the court noted.
“Governments at all levels are free to assist businesses that are economically disadvantaged, but they should do so without playing favorites by race,” said PLF’s Sharon Browne. “This is a basic American doctrine, with roots in the Declaration of Independence. The Defense Department is supposed to be safeguarding the rights and freedoms of everyone, not subverting rights – so it is good news that DOD’s quota program can now be declared dead.”
In submitting its brief, PLF represented the Center for Equal Opportunity, a national think tank devoted exclusively to the promotion of colorblind equal opportunity and racial harmony.
The case is Rothe Development Corporation v. United States, 545 F.3d 1023 (Fed. Cir. 2008). PLF’s brief opposing the Pentagon racial quotas, can be found at www.pacificlegal.org.
About Pacific Legal Foundation
Pacific Legal Foundation (www.pacificlegal.org) is the oldest and most successful public interest legal organization dedicated to limited government, individual rights, and property rights.
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