Memo to Gov. Baker: Quotas are the opposite of fair

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Governor Charlie Baker recently broke new ground by making Massachusetts the first state in the nation to make lesbian, gay, bisexual, and transgendered-owned businesses the beneficiaries of government set-asides.

The new “supplier diversity” order means that in a few years, a certain percentage of contracts entered into by the Commonwealth will have to be set-aside for LGBT businesses.

From a raw political perspective, I almost want to congratulate the LGBT community — after all, if every other minority community is granted government preferences, why the heck shouldn’t the LGBT community get its slice of pie? Bonuses for the LBGT lobbyists!

I can even understand the political strategy of Governor Baker — a Republican in a liberal state — who likely welcomes the opportunity to support an LGBT initiative and shed some of the stigma that comes with the Republican brand here in the bluest state. Besides, it’s a chance to pick up a few votes. After all, most gay and lesbian people I know are fairly fiscally conservative, and would be at least persuadable voters for Republicans, were it not for LBGT-specific issues (that make voting “R” a nonstarter for many).

But, as a matter of principle, I cannot condone this further drift from the ideal of equal opportunity toward a world of legalized discrimination in service of proportionality and equal outcomes.

Have we forgotten that the U.S. Constitution frowns upon quotas in government contracting? Have we forgotten the Supreme Court’s pronouncements (in the landmark cases of Adarand v. Pena and Croson v. City of Richmond) that federal and state set-aside programs are constitutionally valid (with respect to race) only as a remedial measure in response to a  well-documented history of discrimination?

By providing set-asides for every conceivable demographic group other than straight, white, abled-bodied men who have never served in the military, quotas become the exception that swallows the rule. 

In Croson, the Court held that a contracting preference that included Hispanics and  Aleutian Islanders (among others) by the City of Richmond was not supported by any actual history or evidence that these groups had, in fact, been subject to discrimination in Richmond. In short, the Court has recognized that principles of equal opportunity cannot be set aside lightly and may be justified only when needed as a remedy to specific, proven discrimination – such as was the case for black Americans emerging from decades of government-enforced subjugation and exclusion from the contracting process.

The Court has repeatedly rejected any justification of quotas for the purposes of proportionality alone. Even in the context of higher education admissions, it (temporarily) allows consideration of race (rejecting explicit quotas) only to the extent that colleges an show that a diverse student body educationally benefits students and is unachievable by race-neutral means. And although not a legal justification for discrimination in admissions, the notion that such programs are a response to long-term societal discrimination against racial minorities — an intergenerational “make-up call” — underlies the widespread tolerance of the practice.

The narrow justifications that have historically allowed temporary racial preferences in government contracting do not justify the permanent expansion of a demographic spoils system to any and all groups with a lobbyist. Expansion of contracting preferences to LGBT business owners signals that, whatever the merits of such programs as a temporary remedy to past discrimination, such programs now have no logical endpoint. Voters might reasonably ask Governor Baker: will it ever end?

An “out and proud” Southern Baptist in Cambridge likely gets more “side-eyes” at a government agency than a man married to another man. Should such persons get a set-aside as well? What about Muslims? The elderly?

Registered Republicans? (There are more Hispanics in Massachusetts — over 600,000 — than registered Republicans — 450,000 — after all.)

By including every conceivable subgroup of business owners other than straight, white, abled-bodied men who have never served in the military, quotas become the exception that swallows the rule.

The reality is we are all underrepresented minorities in some aspects of our lives, and most of these characteristics have little to nothing to do with our ability to sell services to the government at the lowest price. We should train our contractors not to discriminate, provide avenues for wrongly rejected contractors to sue for unlawful discrimination, vigorously enforce anti-discrimination laws, make sure all communities are aware of opportunities work for the government, and leave it at that.

The irony, of course, is that by promising every conceivable demographic group its “fair share” before the process even starts, we are setting up a process that is anything but.

Robert N. Driscoll, former Chief of Staff of the Civil Rights Division at the Department of Justice, is a native of the Boston area who currently practices law in Washington, D.C. The views expressed in this column are his own and not those of his firm. Nor are they the views of his wife, daughters, or greyhounds. 

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