Minority Set-Asides Eroded Further

Kegler Brown Construction Newsletter

A more conservative U.S. Supreme Court has ruled that federal set-aside programs must be examined with the same skepticism or "strict scrutiny" as state and local programs. This ruling would appear to signal the same slow, steady demise for many federal affirmative action programs that has been previously experienced over the last few years with respect to racially based state and local plans.

In the landmark case, Adarand Constructors, Inc. v. Peña, the white Colorado guardrail contractor who submitted the low bid but lost out to a Hispanic firm successfully argued that federal record classifications should be reviewed with "strict scrutiny" and that discrimination against whites should be evaluated by the same standards as discrimination against minorities.

The Supreme Court ruled that any official action that treats a person differently on account of race or ethnic origin is "inherently suspect and presumptively invalid." The Supreme Court did not declare the federal DOT 10% set-aside program unconstitutional, but instead remanded the case back to the trial court for application of the "strict scrutiny" analysis to the facts in question. Few set-aside programs have been able to survive such a "strict scrutiny" test.