Time to Set Aside Set-Asides?: With the Civil-Rights Race Won, our Government Should Embrace Colorblindness

COMMENTARY Government Regulation

Time to Set Aside Set-Asides?: With the Civil-Rights Race Won, our Government Should Embrace Colorblindness

Jan 28, 2009 5 min read

Former Distinguished Fellow

Michael is a former Distinguished Fellow at The Heritage Foundation.

Barack Obama's inauguration is "a huge civil rights moment." So said the Rev. Jesse Jackson, who added that Obama "has run the last lap of a 54-year race for civil rights." As Inauguration Day approached, Obama himself discussed with the Washington Post "how his racial identity can unify and transform the country." The Post quotes him thus:

There is an entire generation that will grow up taking for granted that the highest office in the land is filled by an African American. I mean, that's a radical thing. It changes how black children look at themselves. It also changes how white children look at black children. And I wouldn't underestimate the force of that.

It's not the first time Obama has addressed the issue of race, of course. Many will recall his speech in Philadelphia last March, in which he linked his own multi-racial, multi-ethnic heritage to the history of race relations in America. (He memorably noted that he has relatives "of every hue scattered on three continents.")

But Obama's most revealing comments on race came in a May 2007 interview with ABC's George Stephanopoulos. "[Y]ou and your wife went to Harvard Law School. You've got plenty of money. You're running for president," Stephanopoulos noted. "Why should your daughters, when they go to college, get affirmative action?"

Distancing himself from the usual, race-centered view of affirmative action, Obama acknowledged that "my daughters should probably be treated by any admissions officer as folks who are pretty advantaged."

And he didn't stop there. Universities, he said, should also take into account "white kids who have been disadvantaged and have grown up inpoverty and shown themselves to have what it takes to succeed."

Affirmative action, he concluded, "can't be a quota system and it can't be something that is simply applied without looking at the whole person, whether that person is black or white or Hispanic, male or female." Obama even held out the hope that eventually affirmative action would wither away, becoming, over time, "a diminishing tool to achieve racial equality in this society."

His optimism that the days of race-conscious laws are numbered harks back to the 2003 Supreme Court decision in Grutter v. Bollinger. Writing for the majority, Justice Sandra Day O'Connor declared that "race-conscious admissions policies must be limited in time" because "racial classifications are potentially so dangerous that they may be employed no more broadly than the interest demands." In one of the most bizarre passages in Supreme Court case law, O'Connor mused:

It has been 25 years since Justice Powell first approved the use of race in the context of public higher education. Since that time, the number of minority applicants with high grades and test scores has indeed increased. We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.

O'Connor's clock has been ticking for more than five years now. With Obama's ascension to the Oval Office, shouldn't we dramatically accelerate the timetable? Can we finally complete that "last lap" by eliminating the hundreds of race- and gender-based preferences that are ensconced in federal law?

A 2004 Congressional Research Service (CRS) survey of federal affirmative-action policies offers Obama a roadmap to accomplish just that. The CRS report is a broad but admittedly non-exhaustive review of federal laws, regulations, and executive orders that "prefer or consider race, gender, or ethnicity as affirmative factors in federal employment, in the allocation of federal contracts, or in granting any federal benefit to individuals or institutions." It uncovers, by my count, 173 "goals, timetables, set-asides, and quotas" in virtually every area where Uncle Sam hires employees, lets contracts, dispenses benefits, or enacts regulations. The authors summarize the breadth of their findings as follows:

[T]argeted funding, in various forms, and minority or disadvantaged business set-asides or preferences have been included in major authorization or appropriation measures for agriculture, communications, defense, education, public works, transportation, foreign relations, energy and water development, banking, scientific research and space exploration, and other purposes.

Obviously, these preferences cover quite a large chunk of taxpayer money. In 2007 total federal procurement activity exceeded $440 billion. Federal bureaucrats handed out another $495 billion in grants.

The set-asides come in all shapes and sizes-5 percent, 6.9 percent, 8 percent, 10 percent, 12 percent, and even 15 percent. Several examples follow.

To eliminate minority and female "under-representation" among their employees, federal departments and agencies may establish "numerical goals" for hiring that take race and gender into consideration. These goals, the report found, are "a fundamental aspect of affirmative action planning" at the federal level.

At the Department of Defense, the Coast Guard, and NASA, 5 percent of all contracts are reserved for "socially and economically disadvantaged individuals, historically black colleges and universities and minority institutions."

Uncle Sam has a nationwide hiring goal of 6.9 percent for women in federal construction projects, as well as local goals known as "hometown plans" for minorities in construction.

There are 10 percent set-asides for contracts and subcontracts issued pursuant to the Clean Air Act and the Energy Policy Act. (Both laws will get enormous funding boosts in the economic "stimulus" bill.)

The National Science Foundation's science and engineering education program must funnel 15 percent of its funds to institutions with a "substantial percentage" of minority students or institutions that "demonstrate a commitment to meet the special education needs" of minority students.

Who is eligible to benefit from these provisions? There are as many answers as there are federal agencies and statutory schemes. My favorite is the definition of "socially disadvantaged" in the Small Business Administration's section 8(a) program. To quote the CRS report:

Groups presumed to be "socially disadvantaged" include: "Black Americans; Hispanic Americans; Native Americans (American Indians, Eskimos, Aleuts, or Native Hawaiians); Asian Pacific Americans (persons with origins from Burma, Thailand, Malaysia, Indonesia, Singapore, Brunei, Japan, China (including Hong Kong), Taiwan, Laos, Cambodia (Kampuchea), Vietnam, Korea, The Philippines, U.S. Trust Territory of the Pacific Islands (Republic of Palau), Republic of the Marshall Islands, Federated States of Micronesia, the Commonwealth of the Northern Mariana Islands, Guam[,] Samoa, Macao, Fiji, Tonga, Kiribati, Tuval[u] or Nauru); Subcontinent Asian Americans (persons with origins from India, Pakistan, Bangladesh, Sri Lanka, Bhutan, the Maldive Islands, or Nepal)" and members of other groups as designated [by] the SBA from time to time.

Got that? Even those with ties to Hong Kong, Taiwan, South Korea, and Singapore, which rank among the world's most affluent and economically free economies, are deemed "socially disadvantaged."

Changing the way Washington operates is all the rage right now. But real change requires upending cozy sinecures that profit no one except the supplicants in question. The far-reaching affirmative-action regime that runs quietly through so many federal programs is one such sinecure. Its disintegration is long overdue-and necessary, if we truly wish to change the way we Americans "look at ourselves."

Mike Franc is Vice President for Government Relations at The Heritage Foundation.

First Appeared in National Review Online