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Each year, government contracting programs dole out tens of billions of dollars to businesses that meet certain racial criteria. For example, in 2023, the State of Wisconsin spent over $200 million with “diverse suppliers.”[1] Under Wisconsin state law, state agencies can give minority-owned businesses a 5% “bid preference” when those businesses bid to supply products or services.[2] For example, an agency may judge a minority-owned business offering to sell pencils to the state for $100 as if the business bid $95.[3] This hypothetical minority-owned business could qualify as the lowest bidder even if a white-owned business bid $96.[4] The state still pays the minority-owned business $100 even though it was treated as having bid $95. The federal government and most states have similar programs.[5] Some programs have been enjoined, but many more have not been challenged.[6]

These race-based contracting programs are inconsistent with equal protection under the law, which is guaranteed by the U.S. Constitution. One of the primary drafters of the Fourteenth Amendment noted that the nation fought a Civil War to bring about “the absolute equality of all citizens . . . .”[7] Another similarly explained, “free government demands the abolition of all distinctions founded on color and race.”[8]

Given that these programs are unconstitutional, why have they remained in effect? The answer lies largely in the litigation strategies that have been deployed to challenge them. Under U.S. Supreme Court precedent, such programs are illegal if the government cannot satisfy the so-called “strict scrutiny” test, which requires the government to prove that it has a “compelling” interest and that the use of race is “narrowly tailored” to achieve that interest.[9] To date, most plaintiffs have focused on the compelling-interest prong. This emphasis has led to expensive and time-consuming discovery and motion practice. Although intended to be a high bar, “compelling” is not an especially clear threshold (or at least, so government attorneys have argued). Government attorneys have taken advantage of this subjectivity, bogging down cases in statistical analyses and expert depositions, often leading to records with thousands of pages. Many cases have been filed only to trundle on for years, allowing the government to change its position and even moot some cases.

A new path is now available. In 2023, the U.S. Supreme Court decided Students for Fair Admissions, Inc. v. President & Fellows of Harvard College (SFFA).[10] The Court held that affirmative action programs are unconstitutional unless they satisfy the “twin commands” of equal protection in addition to the traditional strict scrutiny test.[11] The twin commands are that “race may never be used as a ‘negative[,]’ and . . . it may not operate as a stereotype.”[12] The Court further explained that in a “zero-sum” fact pattern, like college admissions, any consideration of race is necessarily negative and likely based on stereotypes.[13] The twin-commands test allow plaintiffs an opportunity to streamline otherwise expensive and time-consuming litigation because the twin commands raise legal questions for which factual development—i.e., discovery—is mostly (maybe even entirely) unnecessary.

This article proceeds in three parts. Part I presents the problem of focusing on the compelling-interest prong of strict scrutiny, and how that focus has led to a forty-year stalemate in equality litigation. Part II discusses SFFA and the twin commands. Lastly, Part III lays out how the twin commands offer a better path to challenge race-based spending and other affirmative action programs.

I. The Long Slog of Equality Litigation

Race-based spending emerged in the 1960s largely because of a shift in the way many conceptualized “discrimination,”[14] and it has been a hallmark of government ever since.[15] Before that era, across the political spectrum,[16] most understood “discrimination” to mean “a distinction in treatment given to different individuals because of their different race.”[17] Indeed, according to one legal scholar and historian, “[i]n the whole of the congressional debate over the Civil Rights Act of 1964, no theme is more prominent than the exasperated insistence of the bill’s supporters, in answer to repeated southern fears, that a law prohibiting discrimination must necessarily prohibit preferential treatment.”[18] Presidential administrations prior to the 1960s prohibited explicit racial discrimination in government contracting—they did not implement affirmative action programs,[19] which are designed to give certain racial minorities a preference.

Racial preference programs, under the banner of “affirmative action,” first began to take root with an executive order from President John F. Kennedy in 1961.[20] Similar to his predecessors, he required that government contractors agree “not to discriminate against any employee or applicant for employment because of race . . . .”[21] He took things a step further, though, by also stating, “[t]he contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race . . . .”[22] In 1965, President Lyndon B. Johnson expanded the order, directing federal contractors to increase participation rates for minorities and women.[23]

In 1977, Congress formally backed race-based spending when it created the “Minority Business Enterprise” (MBE) program.[24] It authorized $4 billion in federal grants to state and local governments,[25] but it provided “no grant shall be made . . . for any local public works project unless the applicant gives satisfactory assurance to the Secretary [of Commerce] that at least 10 per centum of the amount of the grant shall be expended for minority business enterprises” (defined as a business that is at least half owned by certain minorities).[26] In subsequent years, Congress enacted similar programs, such as Section 8(a) of the Small Business Act and the Disadvantaged Business Enterprise Program.[27]

By the late 1970s, litigation against race-based spending had been generally unsuccessful. Speaking in favor of the 1977 MBE legislation, Representative Parren J. Mitchell of Maryland remarked that federal race-based spending had been “tested in the courts more than 30 times” and “found to be legitimate and bona fide.”[28] The MBE program itself was upheld by the U.S. Supreme Court in Fullilove v. Klutznick, with the Court applying intermediate scrutiny and holding that Congress was not required to “act in a wholly ‘color-blind’ fashion.”[29]

Many states followed the federal government’s lead. In 1980, for example, the state of Ohio implemented an MBE contracting program, which was upheld by the Sixth Circuit.[30] Michigan passed a similar law in 1980, which was also upheld.[31]

The first major win for plaintiffs challenging race-based preferences came in a challenge to a local program in City of Richmond v. J.A. Croson Co.[32] In 1983, the City of Richmond, Virginia, mandated that at least 30% of all contracts be awarded to minority-owned businesses.[33] After six years of litigation, the U.S. Supreme Court sided with the plaintiff, holding that the program was not narrowly tailored to serve a compelling interest.[34] In a fractured opinion, the Court criticized the government’s attempt to “remedy various forms of past discrimination,” specifically noting that “societal discrimination” was not something that could be constitutionally remedied with affirmative action.[35] The Court rebuffed Richmond’s argument that affirmative action could be justified based upon the “generalized assertion that there has been past discrimination in an entire industry.”[36]

A plurality in Croson, however, suggested how a government could justify race-based spending. It explained that discrimination justifying affirmative action could be proven through an appropriate disparity study, even though such studies would seem to prove little more than “generalized assertion[s] that there has been past discrimination . . . .”[37] Specifically, the plurality said: “Where there is a significant statistical disparity between the number of qualified minority contractors willing and able to perform a particular service and the number of such contractors actually engaged by the locality or the locality’s prime contractors, an inference of discriminatory exclusion could arise.”[38] The plurality allowed for “some form of narrowly tailored racial preference” to “break down patterns of deliberate discrimination.”[39] It mentioned that “significant statistical disparit[ies]” could be used as evidence.[40]

The plurality’s suggestion that “disparities” might justify a race-conscious cure spurred a generation of race-based spending, purportedly justified by so-called “disparity studies.” Professor George La Noue, a nationally renowned expert on supplier-diversity litigation, remarked in one article that “[g]overnments latched on” to the suggestion, “leading to a massive investment in so-called disparity studies, which sought to create a predicate for the creation or continuation of . . . [race-based spending] programs.”[41] He noted the existence of a cottage industry for such studies, explaining that “[m]ore than 600 such studies were commissioned over the ensuing years, at an estimated cost of more than 300 million dollars.”[42] The vast majority of these studies were performed by “for-profit consultants”—hired guns “who understood the results the market demanded.”[43]

In practice, the upshot of Croson was that governments implemented the same programs but sought to offer enough evidence of “statistical disparities” to justify them. Dozens of lawsuits challenged race-based spending, and government attorneys defended the programs with mountains of statistical information intended to prove the government’s compelling interest in remedying racial disparities.[44] In many cases, plaintiffs endured weeks-long trials and expensive expert testimony.[45]

The best example is Adarand v. Peña.[46] In 1989, Adarand, a guardrail subcontracting business, submitted the lowest bid for a portion of guardrail work on a Colorado highway project.[47] The bid was rejected, and the work went to a minority-owned business with a higher bid, so Adarand sued.[48]

The district court, and then the Tenth Circuit, applied intermediate scrutiny and upheld the program.[49] In 1995, the U.S. Supreme Court vacated and remanded, holding that strict scrutiny applied.[50]

In 2000, after eleven years of discovery and appeals, including subsequent trips to the U.S. Supreme Court, the Tenth Circuit applied a “searching judicial inquiry” to review the record and determine whether the government’s evidence established a compelling interest.[51] The Tenth Circuit considered “direct and circumstantial evidence,” including both “statistical and anecdotal evidence.”[52] In justifying the program’s race-consciousness, the court cited evidence from more than thirty congressional hearings and a 26,000-word “Compelling Interest Report” with 135 footnotes and dozens of disparity studies and other evidence of discrimination in the contracting industry.[53] According to the Tenth Circuit, this massive record “more than satisfie[d] the government’s burden” to prove that “Congress has a compelling interest in eradicating the economic roots of racial discrimination in highway transportation programs funded by federal monies.”[54]

Because Adarand did not rebut all of this evidence, it lost. The Tenth Circuit focused on the quantity, not the quality, of the evidence.[55] The disparity studies were treated as nearly dispositive, though they cannot provide any meaningful evidence of actual, concrete race discrimination.[56]

Subsequent litigation against race-based spending has tracked Adarand. The government typically offers mountains of evidence to prove a compelling interest, with courts in many cases giving short shrift to the narrow-tailoring analysis. Consequently, every circuit to have considered the constitutionality of the federal Disadvantaged Business Enterprise Program has upheld it,[57] and the focus of every case was whether the plaintiff was able to oppose the government’s proffered evidence. As the Eighth Circuit said (relying on Adarand), “Congress has spent decades compiling evidence of race discrimination in government highway contracting, of barriers to the formation of minority-owned construction businesses, and of barriers to entry.”[58]

Like Adarand, many of these cases slogged on for over a decade. Concrete Works of Colorado, Inc. filed a lawsuit in 1992 against the City and County of Denver challenging race-based spending goals for construction projects.[59] In 2003, after eleven years of litigation, the Tenth Circuit upheld the program, holding that a voluminous record of statistical and anecdotal evidence justified it.[60] The court did not even consider whether the program was narrowly tailored, claiming that the plaintiffs did not sufficiently raise the issue.[61] Other cases similarly went on for ten years or more with overwhelming amounts of evidence considered by the court.[62]

In another case, Midwest Fence litigated against the U.S. Department of Transportation and the Illinois Department of Transportation for six years and endured punishing expert discovery.[63] At the end of what must have been an immensely expensive lawsuit, Midwest Fence not only lost, but it was also ordered to pay Illinois’s costs.[64] The government’s litigation strategy in these cases makes plaintiffs’ lives difficult, to say the least.

II. A New Test: The Twin Commands

Plaintiffs now have a new way to challenge race-based spending. In SFFA, the U.S. Supreme Court struck down affirmative action in college admissions on various grounds, including its inconsistency with “the twin commands of the Equal Protection Clause”: “race may never be used as a ‘negative[,]’ and . . . it may not operate as a stereotype.”[65] By focusing litigation on the twin commands, future lawsuits against race-based spending can be reasonable and nimble, rather than expensive and lengthy. The twin commands raise legal questions for which factual development—i.e., discovery—is largely unnecessary. The twin commands are absolute or at least near absolute: the Court said they can “never” be violated, not that they may be violated if the government has a compelling interest.

In SFFA, the U.S. Supreme Court stated: (1) “University programs must comply with strict scrutiny,” (2) “they may never use race as a stereotype or negative,” and (3) “at some point—they must end.”[66] The Court emphasized that the admissions policies at issue were “invalid[]” under “each of these criteria.”[67]

Each holding is explicated in its own section of the opinion.[68] Section IV.A is a strict scrutiny analysis.[69] Sections IV.B on the twin commands and IV.C on logical end point never use the phrase “strict scrutiny”—they do not even contain the words “interest” or “tailoring.”[70]

Section IV.B begins with this statement: “The race-based admissions systems that respondents employ also fail to comply with the twin commands . . . .”[71] The U.S. Supreme Court reasoned that “[c]ollege admissions are zero-sum. A benefit provided to some applicants but not to others necessarily advantages the former group at the expense of the latter.”[72] In a zero-sum situation, effectively any consideration of race is necessarily negative.[73] The Court then said that the admissions policies “were infirm for a second reason as well”: “We have long held that universities may not operate their admissions programs on the ‘belief that minority students always (or even consistently) express some characteristic minority viewpoint on any issue.’”[74]

The best reading of SFFA, based on its text and structure, is that the U.S. Supreme Court made three separate—alternative—holdings governing how equal-protection claims should be analyzed. In addition to text and structure, at least three other arguments support this reading.

First, the only other way to construe SFFA would be to suggest that an affirmative action program need only satisfy one of the criteria—which would be absurd. SFFA is a landmark decision because it made affirmative action programs harder—not easier—to implement.

Second, the U.S. Supreme Court endorsed the notion that “[o]ur Constitution is color-blind.”[75] Colorblindness is often misunderstood. It is not an empirical statement about how the nation actually operates, but rather a goal to strive towards, perhaps best summed up by the Court in Shaw v. Reno, when it explained that “ideally” race should “bear[] no relationship to an individual’s worth or needs.”[76] An affirmative action program might be able to satisfy the strict scrutiny test; however, if it cannot also satisfy the twin commands, it necessarily moves away from the goal of treating individuals without regard to their race. As Justice Clarence Thomas wrote in his SFFA concurrence, “[f]ar from advancing the cause of improved race relations in our [n]ation, affirmative action highlights our racial differences with pernicious effect.”[77]

Third, in other contexts, the U.S. Supreme Court has been departing from the strict scrutiny test. For example, in 2022, it held that “means-end scrutiny” was inappropriate for evaluating Second Amendment claims, instead adopting a text and history approach.[78] In light of this trend, reading SFFA as imposing additional requirements makes a lot of sense.

Normally, alternative holdings have equal weight;[79] however, many legal commentators appear to be disregarding portions of SFFA and, in particular, Section IV.B’s language about the twin commands. These attorneys seem to read the “twin commands” language as somehow intertwined with Section IV.A’s discussion of strict scrutiny. Only a few law review articles (notably by authors critical of the twin commands) have suggested the U.S. Supreme Court might have been articulating a new requirement that is in addition to the strict scrutiny test.[80]

A Westlaw search indicates that SFFA has been cited in 138 lower-court opinions, but so far only two have referenced the “twin commands” language. In one of these two, Nuziard v. Minority Business Development Agency, the district court sided with plaintiffs, noting that race-based spending—like college admissions—is “zero sum,” at least “[a]bsent a theoretical program with boundless coffers.”[81] The court treated the twin commands as part of the narrow-tailoring prong of the strict scrutiny test rather than as a separate test altogether; however, the result was much the same as if the twin commands had been treated as an analytically distinct requirement.[82] In the other case, a different district court read the twin commands as intertwined with the compelling-interest prong, ultimately denying a motion to preliminarily enjoin an affirmative action policy at the U.S. Naval Academy.[83] However, the plaintiff never mentioned the twin commands in the memorandum in support of the motion.[84]

At the state level, one judge on the Wisconsin Court of Appeals recently signaled support for reading SFFA to require separate analysis of the twin commands, albeit at an oral argument (an opinion has yet to be issued): “University programs must (1) comply with strict scrutiny; (2) they may never use race as a stereotype or negative; and (3) at some point, they must end. That looks to me like all three need to be satisfied. Not just strict scrutiny . . . .”[85]

The main counterargument to this reading of SFFA is based on footnote 4. In the same paragraph that notes that an affirmative action program must satisfy each of the criteria, the U.S. Supreme Court appended this footnote:

The United States as amicus curiae contends that race-based admissions programs further compelling interests at our [n]ation’s military academies. No military academy is a party to these cases, however, and none of the courts below addressed the propriety of race-based admissions systems in that context. This opinion also does not address the issue, in light of the potentially distinct interests that military academies may present.[86]

This footnote could be read to suggest that the twin commands need not be satisfied if national security is at stake. In other words, when the Court said race may “never” be used as a negative or a stereotype, maybe it really meant “almost never.”

Nearly all legal principles have exceptions, and perhaps the twin commands are no different. Likely, the U.S. Supreme Court was contemplating unique interests that only a military academy could have. For example, if the U.S. Army were to invade a Middle Eastern nation, it may want Arab Americans in its ranks on the theory that they may make a police-like force more effective. Perhaps an affirmative action policy could help achieve this result. Race would be employed as a negative but not necessarily in a manner that egregiously violates colorblind principles—recognizing that other nations might be anything but colorblind and may not even want colorblindness is qualitatively different from abandoning the notion that the United States should be colorblind. At bottom, the footnote should be read narrowly. Even “national security” is not a “trump card” that can be employed willy-nilly to avoid equal protection jurisprudence.[87]

III. A Proposal: Litigate the Twin Commands, not Compelling Interest

The twin commands, as articulated in SFFA, should usher in a new era of equality litigation. Experts are expensive to hire; depositions are expensive to take; disparity studies are confusing and subjective; and getting courts to understand statistical analyses is onerous. Yet plaintiffs’ attorneys have been forced to undertake these tasks when litigating under the compelling-interest prong; they must attempt to refute the government’s stated justifications and pore over thousands of pages of records.[88]

Nuziard, mentioned above, is an example. In that case, people of certain races were presumed disadvantaged for the purpose of a government benefit, while individuals of other races had to prove that they were disadvantaged.[89] Even though the district court held that the program served a compelling interest in remedying past discrimination (after a lengthy discussion, which was necessitated by a lengthy record), it still held that the program was unconstitutional.[90]

As the district court reasoned, “‘[a] benefit provided to some applicants but not to others necessarily advantages the former group at the expense of the latter.’ MBDA Business Centers have finite resources and offer finite services.”[91] Accordingly, the presumption necessarily used race as a negative—some people could not get the benefit, and race was a factor.[92] Additionally, the presumption was premised on a stereotype.[93] In the court’s words, the administrative agency believed “race is a reliable proxy for disadvantage, at least with respect to the listed groups. Thus, if a business owner belongs to an enumerated group, he or she is entitled to services without regard to their life circumstances, financial performance, or any social or economic metrics of ‘disadvantage.’”[94]

As Nuziard suggests, the fact-finding necessary for a plaintiff to win a challenge to race-based spending under the twin commands is minimal. The plaintiff likely need only show that the government’s resources are finite (which is practically a truism) and that race is somehow being used as a factor in distributing those resources. Such facts establish that race is necessarily being used as a negative—which alone renders the program unconstitutional. Additionally, unless the government randomly picked a few races to favor (which would likely create other issues), it presumably relied on stereotypes. For example, even if the government has mounds of evidence to suggest that, on average, blacks have less successful businesses, if it presumes that a particular black-owned business needs help based on that data, it would be employing a stereotype. Absent the bigotry of low expectations, the government has no basis to believe that a particular business is doing as poorly as other businesses owned by people with the same skin color.

To plaintiffs’ attorneys still not convinced, consider this: the plaintiffs’ attorneys in Nuziard did not take a single deposition, hire a single expert, or commission an expensive rebuttal disparity study.[95] They won the case because the government used race as a “negative” and a “stereotype.” Whether the government was attempting to remedy past discrimination was, for all intents and purposes, irrelevant to the outcome.[96]

IV. Conclusion

Plaintiffs should seriously consider whether they need to argue about strict scrutiny at all given the twin commands. Plaintiffs may be loath to let a government attorney get away with arguing that race-based spending serves a compelling interest. But they may be more successful if they are able to frame their complaints in such a way that the government’s supposed interest—and all the costly evidence-gathering needed to support and refute it—is completely irrelevant. This strategy will likely be more successful and achieve plaintiffs’ desired outcomes at a substantially lower cost.

 

 

 

[1]  State of Wis. Dep’t of Admin., State of Wisconsin Supplier Diversity Report: Fiscal Year 2023, at 3 (2024), available at https://supplierdiversity.wi.gov/PublishingImages/Pages/AnnualReports/FY23/FY23%20Supplier%20Diversity%20Report.pdf.

[2] Id. at 4–6.

[3]Id. at 6 (citing Wis. Stat. § 16.75(3m)(b)3.).

[4]See id.

[5]  George R. La Noue, Racial Preferences in Economic Benefits: From Widely Accepted to Legally Indefensible, 25 Federalist Soc’y Rev. 72, 74 (2024), available at https://fedsoc.org/fedsoc-review/racial-preferences-in-economic-benefits-from-widely-accepted-to-legally-indefensible (estimating 47 states plus Washington D.C. and Puerto Rico have minority and women-owned business enterprise programs); Nat’l Ass’n of State Procurement Officials, Supplier Diversity Snapshot: 8 States in Review 8 (2022) (noting approximately 35 states have “procurement diversity initiatives”), available at https://cdn.naspo.org/RI/SupplierDiversitySnapshot_8StatesinReview.pdf.

[6]E.g., MAMCO v. U.S. Dep’t of Trans., No. 3:23-cv-00072-GFVT, 2024 WL 4267183, at *13 (E.D. Ky. Sept. 23, 2024); Ultima Servs. Corps. v. U.S. Dep’t of Agric., 683 F. Supp. 3d 745, 774–75 (E.D. Tenn. 2023).

[7]  Cong. Globe, 39th Cong., 1st Sess. 431 (1866) (statement of Rep. Bingham).

[8]  2 Cong. Rec. 4083 (1874) (statement of Sen. Pratt).

[9]  Adarand Constructors, Inc. v. Peña, 515 U.S. 200, 227 (1995).

[10]  600 U.S. 181 (2023).

[11]Id. at 218.

[12] Id.

[13]Id. at 218–20.

[14]  Andrew Kull, The Color-Blind Constitution 182 (1992).

[15]  Cong. Rsch. Serv., SBA’s “8(a) Program”: Overview, History, and Current Issues 3 (2022), https://sgp.fas.org/crs/misc/R44844.pdf.

[16]  Kull, supra note 14, at 182.

[17]  10 Cong. Rec. 5423 (1964) (statement of Sen. Humphrey).

[18]  Kull, supra note 14, at 182–83.

[19]  Cong. Rsch. Serv., supra note 15, at 3.

[20]  Kull, supra note 14, at 200.

[21]  Exec. Order No. 10,925, 26 Fed. Reg. 1977 (Mar. 6, 1961), available at https://www.federalregister.gov/executive-order/10925.

[22]Id. (emphasis added). But see Kull, supra note 14, at 200–01 (arguing “[a]s late as 1968,” no one seemed to think that the “affirmative action” requirement “imposed any obligation beyond good-faith adherence to nondiscriminatory practices”).

[23]  Exec. Order No. 11,246 (Sept. 24, 1965); see also Exec. Order No. 11,375 (Oct. 13, 1967).

[24]  Public Works Employment Act of 1977, Pub L. No. 95-28, 91 Stat. 116 (May 13, 1977).

[25]  Kull, supra note 14, at 208.

[26]  Public Works Employment Act § 102(B)(2).

[27]E.g., To amend the Small Business Act and the Small Business Investment Act of 1958, Pub L. No. 95-507, 92 Stat. 1757 (Oct. 24, 1978).

[28]  123 Cong. Rec. 5097 (1977) (statement of Rep. Mitchell).

[29]  448 U.S. 448, 482 (1980).

[30]  Ohio Contractors Ass’n v. Keip, 713 F.2d 167, 168 (6th Cir. 1983), abrogated by Associated Gen. Contractors of Ohio v. Drabik, 214 F.3d 730 (6th Cir. 2000).

[31]  Mich. Rd. Builders Ass’n v. Milliken, 834 F.2d 583, 584 (6th Cir. 1987), aff’d, 489 U.S. 1061 (1989).

[32]  488 U.S. 469 (1989).

[33]Id. at 478.

[34]Id. at 511.

[35]Id. at 498, 505.

[36]Id. at 498.

[37]Id.

[38] Id. at 509 (plurality opinion).

[39] Id.

[40]Id.

[41]  La Noue, supra note 5, at 77.

[42]Id.

[43]Id.

[44]Id. at 75 (citing Associated Gen. Contractors v. City of Columbus, 936 F. Supp. 1363 (S.D. Ohio 1996); Contractors Ass’n of E. Pa. v. City of Phila., 735 F. Supp. 1274 (E.D. Pa. 1990), aff’d, 945 F.2d. 1260 (3d Cir. 1991); Builders Ass’n of Greater Chi. v. Cnty. of Cook, 123 F. Supp. 2d 1087 (N.D. Ill. 2000), aff’d, 256 F.3d 642 (7th Cir. 2001); Builders Ass’n of Greater Chi. v. City of Chi., 298 F. Supp. 2d 725 (N.D. Ill. 2003)).

[45]Id.

[46]  515 U.S. 200 (1995).

[47]Id. at 205.

[48]Id.

[49]  Adarand Constructors, Inc. v. Peña, 16 F.3d 1537, 1539, 1544 (10th Cir. 1994), vacated and remanded, 515 U.S. 200 (1995), sub nom. Adarand Constructors, Inc. v. Slater, 228 F.3d 1147 (10th Cir. 2000).

[50]Adarand, 515 U.S. at 238–39.

[51]Adarand, 228 F.3d at 1166.

[52] Id. at 1166, 1168.

[53]Id. at 1168 (citing Prop. Reforms to Affirmative Action in Fed. Procurement, 61 Fed. Reg. 26042-01 (May 23, 1996)).

[54]Id. at 1176.

[55]See id. at 1175. Ultimately, the Tenth Circuit also held that the program was narrowly tailored because it had been amended by the agency to include an “individualized determination of economic disadvantage,” thereby eliminating “its offending 1996 practices.” Id. at 1185.

[56]  Disparity studies are based on statistical evidence, which can at best show that disparities exist, but these studies do not amount to a “strong basis” in evidence of intentional discrimination. Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 277 (1986). Courts have noted that statistics should not be “accorded talismanic significance.” Peightal v. Metro. Dade Cnty., 26 F.3d 1545, 1556 (11th Cir. 1994). The statistics must account for “race-neutral explanation[s] for the apparent statistical disparities.” Eng’g Contractors Ass’n v. Metro. Dade County, 943 F. Supp. 1576, 1573 (S.D. Fla. 1996), aff’d Eng’g Contractors Ass’n v. Metro. Dade County, 122 F.3d 895 (11th Cir. 1997); see also Eng’g Contractors, 122 F.3d at 919 n.4 (aggregating data can create illusory disparities). Disparity studies, however, cannot appropriately control for all race-neutral factors, such as firm size, revenues, employment size, bonding limits, insurance, licensing, experience, and geography. See Eng’g Contractors, 122 F.3d at 917 (“More simply put: Because they are bigger, bigger firms have a bigger chance to win bigger contracts.”); Mich. Road Builders v. Milliken, 834 F.2d 583, 592 (6th Cir. 1987) (“Small businesses, as a result of their size, were unable to effectively compete for state contracts.”); Rothe Dev. Corp. v. Dep’t of Def., 545 F.3d 1023, 1042–43 (Fed. Cir. 2008) (“We are even more troubled, however by the failure of five of the studies to account sufficiently for potential differences in size, or relative capacity, of the businesses included in those studies.”). The district court noted in Engineering Contractors that “non-social factors . . . may distort the final result.” Eng’g Contractors, 943 F. Supp. at 1555 (giving the following examples: “deficiencies in working capital, inability to meet[] bonding requirements, unfamiliarity with bidding procedures, and disability caused by an inadequate track record”). “These problems face any new entrant into the construction industry, regardless of race.” Id. Bidding on federal contracts is time-intensive and expensive, id. at 1583, and who bids and how often impact whether contracts are awarded. See George R. La Noue, Setting Goals in the Federal Disadvantaged Business Enterprise Programs, 17 Geo. Mason U. Civ. Rts. L.J. 423, 436 (2007); Michael Kenig, Project Delivery Systems for Building Management 64–65 (Assoc. Gen. Contractors of Am. 1997). Small minority-owned firms, which may bid less frequently or may not have the capacity to bid on major federal projects, cannot be compared to larger, more sophisticated firms that might not be owned by minorities. Eng’g Contractors, 122 F.3d at 917 (noting a county’s own expert admitted that “firm size plays a significant role in determining which firms win contracts”). In short, many factors can explain racial disparities, and it is wrong to assume all disparities equate to racial discrimination.

[57]  Midwest Fence Corp. v. U.S. Dep’t of Transp., 840 F.3d 932, 941, 935–36 (7th Cir. 2016); W. States Paving Co. v. Wash. State Dep’t of Transp., 407 F.3d 983, 995 (9th Cir. 2005); Sherbrooke Turf, Inc. v. Minn. Dep’t of Transp., 345 F.3d 964, 967–68 (8th Cir. 2003); Adarand, 228 F.3d at 1155.

[58]Sherbrooke Turf, 345 F.3d at 970.

[59]  Concrete Works of Colo., Inc. v. City & Cnty. of Denver, 321 F.3d 950, 992 (10th Cir. 2003).

[60]Id. at 994.

[61]Id. at 992–93.

[62]See, e.g., Rothe Dev. Corp. v. U.S. Dep’t of Def., 606 F. Supp. 2d 648 (W.D. Tex. 2009); Rothe Dev. Corp. v. U.S. Dep’t of Def., 49 F. Supp. 2d 937 (W.D. Tex. 1999).

[63]See Midwest Fence Corp. v. U.S. Dep’t of Transp., No. 10 C 5627, 2014 WL 322059, at *7 (N.D. Ill. Jan. 28, 2014).

[64]  Midwest Fence Corp. v. U.S. Dep’t of Transp., No. 10 C 5627, 2018 WL 1535081 (N.D. Ill. Mar. 29, 2018).

[65]  600 U.S. at 218.

[66]Id. at 213.

[67]Id.; see also id. at 230 (“Both programs lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points.”).

[68]Id. at 214–21.

[69]Id. at 214–18.

[70] Id. at 218–25.

[71]Id. at 214 (emphasis added).

[72]Id. at 218–19.

[73]Id.

[74]Id. at 219 (emphasis added) (quoting Grutter v. Bollinger, 539 U.S. 306, 333 (2003)).

[75]Id. at 230 (quoting Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J., dissenting), overruled by Brown v. Bd. of Ed., 347 U.S. 483 (1954)).

[76]  509 U.S. 630, 643 (1993) (quoting United Jewish Orgs. of Williamsburgh, Inc. v. Carey, 430 U.S. 144, 173 (1977) (Brennan, J., concurring in part)).

[77]SFFA, 600 U.S. at 274 (Thomas, J., concurring).

[78]See, e.g., N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1, 19 (2022); see also id. at 24 (“This Second Amendment standard accords with how we protect other constitutional rights.”).

[79]E.g., Texas v. United States, 809 F.3d 134, 178 n.158 (5th Cir. 2015) (quoted source omitted) (“This circuit follows the rule that alternative holdings are binding precedent and not obiter dictum.”).

[80]E.g., Larry J. Pittman, The Supreme Court’s Erroneous Equal Protection Clause Analysis: Societal Discrimination, the Harvard College Decision as the New Plessy v. Ferguson-Lite, and the Thirteenth Amendment, 57 Creighton L. Rev. 189, 234 (2024) (noting the twin commands “appear[]” to be a new requirement, separate from strict scrutiny).

[81]  No. 4:23-cv-00278-P, 2024 WL 965299, at *36 (N.D. Tex. Mar. 5, 2024).

[82]See id.

[83]  Students for Fair Admissions v. U.S. Naval Acad., No. RDB-23-2699, 2023 WL 8806668 (D. Md. Dec. 20, 2023).

[84]  Mem. Law Supp. Mot. Prelim. Inj., SFFA v. U.S. Naval Acad., 2023 WL 8806668 (Dec. 20, 2023) (No. RDB-23-2699), available at https://storage.courtlistener.com/recap/gov.uscourts.mdd.545858/gov.uscourts.mdd.545858.9.1.pdf.

[85]  Oral Argument at 0:55:38, Rabiebna v. Higher Ed. Aids Bd., No. 2022AP002026 (Wis. Ct. App. July 11, 2024), available at https://www.wicourts.gov/CaAudioSearch?docket_number=2022AP002026&begin_date=07-11-2024&end_date=07-11-2024&Submit=Search.

[86]SFFA, 600 U.S. at 213 n.4.

[87]  Dan Lennington & Skylar Croy, Opinion, Affirmative Action Has No Place at Military-Service Academies, Nat’l Rev. (Feb. 11, 2024), https://www.nationalreview.com/2024/02/affirmative-action-has-no-place-at-military-service-academies/.

[88]  Plaintiffs’ attorneys may be operating under the assumption that it will disadvantage their clients to give up on a strategy. This is not always true. If litigating compelling interest is time-consuming, expensive, and focuses the case on the wrong legal issue, attorneys who cling to their traditional litigation strategies could be doing their clients a disservice. It is not a sign of weakness to abandon a losing argument—it is good lawyering to win in the most efficient way possible.

[89]See Nuziard, 2024 WL 965299, at *36.

[90]Id. at *31.

[91] Id. at *36 (quoting SFFA, 600 U.S. at 218–19).

[92]Id.

[93]Id. at *35.

[94]Id.

[95]  One of this article’s authors, Daniel P. Lennington, was the lead attorney for the plaintiffs.

[96]  This article has focused on the “twin commands,” but similar reasoning also applies to the “logical end point” test set forth in SFFA. See SFFA, 600 U.S. at 221. While this test is arguably not new, the SFFA Court made exceedingly clear that an affirmative action program must sunset. It indicated that any affirmative action program older than 20 to 25 years is especially subject to attack. Id. at 224–25; see also id. at 225 (rejecting an argument that a sunset is not necessary when an affirmative action program is “frequently reviewed . . . to determine whether . . . [it] remain[s] necessary”). Many affirmative action programs are decades old, especially in the contracting space. Little discovery or factfinding is needed to challenge these programs solely on their failure to satisfy the logical end point test. See, e.g., MAMCO v. U.S. Dep’t of Trans., No. 3:23-cv-00072-GFVT, 2024 WL 4267183, at *10 (E.D. Ky. Sept. 23, 2024) (“Because the DBE program’s racial preferences are not tethered to a foreseeable conclusion, the race-based presumption fails to be narrowly tailored.”).

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