The Government’s racially discriminatory public contracting program treats individuals differently on the basis of race. This mandate of differential treatment is not supported by a compelling interest to remedy past discrimination. If the true purpose is the remedying of discrimination rather than racial politics, the Government should have no objection to making specific findings of discrimination instead of relying on flimsy and discredited evidence found in its disparity studies. Without an adequate factual predicate for the use of race-based remedies, there can be only one purpose: racial politics.
The Government’s reliance on statistical disparities and anecdotal claims of discrimination is insufficient to demonstrate a compelling government interest and is an indicator that race is being used for illegitimate purposes. To avoid allowing the unjustified and illegitimate use of racial classifications by Government, this Court should hold that the Government’s race-based program fails strict scrutiny, because it is not based on findings of past discrimination or narrowly tailored to remedy actual discrimination.
Even if the Government had proved a compelling interest in ending racial discrimnation in its contracting programs, it has not and could not pass the narrow tailoring requirements of strict scrutiny. Most fundamentally, there is no demonstration that, in order to stop discrimination the Government must adopt discriminatory preferences.
But instead of using racial classifications as a “last resort”, there is no evidence that the Government examined, much less plausibly rejected, race-neutral alternatives or even considered the Program’s lack of flexibility or burden on innocent third parties. Nor can the Government show that its “disparity study[ies]” finding mere “statistical disparity” is sufficiently particularized and specific to support its race-based program.
For the reasons set forth above, this Court should find the Program unconstitutional, and should find [INDIVIDUAL OFFICIALS] personally liable for their violation of [PLAINTIFF]’s constitutional rights.