graphic image depicting green amicus briefs for Atlantic Legal Foundation Amicus Brief Summary

Virtuous Racism: Discrimination Against Members of the Majority

In this case, Petitioner challenges the constitutionality of the “Subcontracting Compensation Clause” incorporated in bid documents and contract documents used by the Central Federal Lands Highway Decisions and the the Small Business Act of 1953, which is the statutory basis for the racial and ethnic preferences in the SCC program. The SCC is a racial preference as defined by the jurisprudence of this Court, because its criteria for eligibility is include a racial or ethnic determinant. In administering the program, states, their agencies, and local governments receiving highway funds must determine whether a firm is owned and controlled by persons who are “economically disadvantaged.” These persons are defined as those who’s “ability to compete . . . has been impaired . . . as compared to others in the same business area who are not socially disadvantaged.” 15 U.S.C. § 637.  “Socially disadvantaged individuals are those who have been subject to racial or ethnic prejudice or cultural bias . . . without regard to their individual qualities.” Id (a)(5). “Black Americans, Hispanic Americans, Native Americans, Asian-Pacific Americans, and other minorities” are presumed to be disadvantaged. Id (d)(3)(C).

The Tenth Circuit below held that this program was constitutionally permissible because “Congress has expressly mandated a race-conscious program” and therefore applied a lenient standard which it derives from its reading of Fillilove v. Klutznick, 448 U.S. 448, (1980). This case had three different opinions in the majority, each using its own test to determine whether racial objectives may be carried out without violating the equal protection clause. 

Issue Areas:

Individual Liberty, Limited Government

Question(s) Presented:

May the federal government provide financial incentives for a federal contractor to discriminate against subcontractors owned by non-disadvantaged groups?

ALF’s Amicus Brief:

In an amicus brief to the Supreme Court of the United States, ALF argues that the federal procurement program is racially based, even if it favors the races favored by certain ideologies. Because the program in question is race based, the standard of review applied to it by the Tenth Circuit, which resembled intermediate scrutiny was inappropriate, because strict scrutiny applies to statutes that discriminate based on racial classifications.  


On June 12, 1995, the Supreme Court issued a favorable opinion, raising the standard of review when the federal government provides financial incentives for federal contractors to discriminate against people on the basis of race (including whites). 

Date Originally Posted: November 8, 1994

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