The Permissibility of Non-Remedial Justifications for Racial Preferences in Public Contracting
Fridkin, Michael K.
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Under Richmond v. J.A. Croson, if a government agency has participated in the systemic exclusion of contractors on the basis of race, the agency has a compelling interest in remedying that discrimination by favoring contractors whose owners belong to the previously excluded race. This remedial defense of racial preferences is the standard notion of affirmative action in public contracting. Of great interest to the government institutions employing racial preferences, however, is whether any non-remedial objectives--separate and distinct from remedying discrimination--may be relied upon to justify the use racial classifications in public contracting and what goals in particular are compelling enough to satisfy strict scrutiny. In limited contexts, courts have held that the non-remedial goals of racial diversity and fulfilling the operational needs of government can be compelling reasons to depart from racial neutrality. Municipalities may now consider arguing that such compelling goals can justify racial preferences in public contracting. However, such racial preferences must also be narrowly tailored. The non-remedial goals of creating vital economic development and enhancing public legitimacy may also justify the limited and flexible use racial preferences in carefully defined circumstances.