Quiz 17: Civil Rights, Women, and Diversity
The Adarand v.Pena was a lawsuit confronting the affirmative action or special treatment afforded to the socially and economically disadvantaged groups, i.e. those who have been subject to racial, ethnic, and cultural discrimination, which comprises of Hispanics, blacks, women, Asian from the subcontinent, Native American, and Asian Pacific, with an undermined capacity to compete in the open market due to their lessened capital and credit opportunities by virtue of their social standing. The petitioner, Pech, was a white male and the general manager of the Adarand Constructors, who asserted that special treatment toward disadvantaged communities was undemocratic. The case bounded off for six years in the Supreme court until it got dismissed in 2001. The primary reason why Adarand Constructor Inc. confronted was due to the loss of the contract to construct the San Juan highways, despite being the lower bidder as compared to Gonzales Construction Company, an identified DBE (disadvantaged business enterprise, indicating that fifty-one percent of its ownership is retained by those from the disadvantaged groups and the Congress presented incentives to higher DBEs into the highway construction law). The reason why Mountain Gravel repudiated Adarand Constructor's bid was due to the subcontractor compensation clause, where it promised that it would be paid a 10 percent bonus if DBE was chosen for the contract. The principal constitutional issue raised was the infringement of the right to equal treatment before the law where Pech alleged that the subcontractor payment clause infringed his legal right. The equality under the lens of the law is interjected under the Fourth Amendment of the Constitution that pronounces that any person would be not deprived of living, freedom, or property, without undergoing the due process of law. The Supreme Court has maintained that the Fourth Amendment not only guards its citizens against unreasonable or unbalanced treatment by the national government but also obstructs governments from withholding equal assurance of laws to the subjects. Pech did not demand reimbursement of monetary damages that were afflicted, however, he petitioned for a court order that called for the prohibition of any anticipated contracts that contribute additional repayments on subcontracts awarded to DBEs.
In the United States, affirmative action was first devised through an executive order by the then President John F. Kennedy in 1961, where it obligated public employees not to discriminate against any individual based on color, class, and creed. It commenced as a governmental action to deal with the long-standing consequences of discrimination against certain groups in which programs and policies were framed that provided partialities to minority groups and women in securing admissions in colleges, workplaces, and various other social advantages. Nevertheless, affirmative action has been disputed by many groups as it is seen as unconstitutional and undemocratic that contradicted the Fourth Amendment which pronounces equality of all before the law. The federal government delivered a landmark decision in determining the constitutionality of affirmative action where it declared that affirmative action is lawful only when they are constituted as closely formulated strategies to reach a compelling executive interest, implying that any action is considered to be an affirmative action only when it is justified as a measure that supplements the compelling interest of the government. Similarly, in the case of Adarand v. Pena, the Supreme Court ordered that the Department of Transportation's policy of granting inclinations to minority subcontractors was obliged to endure strict scrutiny test and since the plan reflected racial categorization and would be deemed as unconstitutional if it failed to establish that it was a tailored proposal that furthered the compelling interests of the administrative machinery to make up for the discriminations faced by the minority groups in the past.
The Adarand v.Pena was a lawsuit confronting the affirmative action or special treatment afforded to the socially and economically disadvantaged groups, where he called this treatment as unconstitutional that violated his legal right to equality. His company loss the contract for constructing San Juan highways in spite of being the lower bidder. The case bounced for six consecutive years in the Supreme Court until it got dismissed as improvidently granted. The Supreme Court ruled in favor of the Adarand Constructors where it ordered that the Department of Transportation's policy of granting inclinations to minority subcontractors was obliged to endure stringent scrutiny test and since the proposal reflected racial categorization and would be deemed as unconstitutional if it failed to establish that it was a tailored proposal that furthered the compelling interests of the administrative machinery primarily to make up for the discriminations faced by the minority groups in the past. The move made by the federal court is erroneous as racial cast is a still a thing and discrimination against minorities persists even today. Race based preferences are necessary to build equality since people of color face discrimination in every field. Minority contractors occasionally fail to gain contracts despite being low bidders, and at times are refuse d work even after winning the bid. The policy of granting preferences to minority subcontractors was necessitated to foster an egalitarian society which is reinforced under the equal protection of law. The federal court decision of leaving this policy under scrutiny will undermine and diminish the capacity of the minority subcontractors to bid in the highly competitive bidding system.