Can the Government Discriminate Based on Race or Gender?

June 14, 2013

One of the great misconceptions in the law is that government entities have the power to award contracts and bestow other favors based on race or gender. In reality, courts have strongly condemned attempts at social engineering by manipulating the rules to favor one citizen over another based on race or gender.

One such case involved Paramitjit Virdi, an architect who placed a bid to fulfill a contract for the Dekalb County Board of Education. Unfortunately for Mr. Virdi, the DeKalb County Board of Education maintained the mildly-named “Minority Vendor Involvement Program.” The program’s stated goal was to “provide increased opportunities for blacks, women, and other minorities to engage in business activities with the school system.” In practice, the minority participation preferences were used as quotas in awarding contracts. Under the program, contracts were not awarded to the lowest bidder. Instead, the program looked first to the minority participation goals and ensured minority vendors were awarded contracts in numbers that exceeded the stated goals on an annual basis.

In a case handled by A. Lee Parks, and the lawyers at Parks, Chesin & Walbert, Mr. Virdi challenged the minority set-aside program in federal court. On June 13, 2005, the United States Court of Appeals for the Eleventh Circuit declared that the DeKalb County School District’s Minority Vendor Involvement Program was unconstitutional because it discriminated against vendors based on race, and favored African-American contractors and applicants. The set-aside program had been in effect in the DeKalb School System for fourteen (14) years.

In a strongly worded opinion, the Court struck down the program as unconstitutional on its face because it created clear racial classifications, and was not narrowly tailored to act as a remedy of some defined past act of discrimination as required by law. The Court rejected the School Board’s argument that there was a compelling remedial interest that supported this type of race-based preference program, finding that “no evidence that the DeKalb District considered any race-neutral alternative means of tracing its activities to avoid unwitting discrimination.” The case is Virdi v. Dekalb County School District, 135 Fed. Appx. 262 (2005).

According to Attorney Parks, “Declaring the Minority Vendor Involvement Program facially unconstitutional was a hard-fought victory for our client and other prospective contractors with the DeKalb County Schools.” Because of this victory, contracting with the DeKalb County School District can take place on an equal, race-neutral basis.

It is the well-established law of the land that the government cannot discriminate against citizens based on immutable characteristics such as race and sex.