In Print: Volume 88: Number 5
By Jarrod D. Reece
88 Wash. U. L. Rev. 1309 (2011)
“Unlike a private buyer, the government is interested, as the sovereign, in achieving a wide variety of social and economic goals.” Indeed, government contracting has been a means of effectuating socioeconomic policy in the United States for nearly half of a century. But these sorts of programs, particularly those that classify based on race, are extremely controversial and face a variety of legal challenges. The Supreme Court of the United States has severely limited the contexts in which race-based affirmative action may be used, and five states—California, Washington, Michigan, Nebraska, and Arizona—have banned such programs by ballot initiative. Despite this backdrop, government contracting can still be used to further socioeconomic policy, but to do so, the focus must move away from race. Politicians across the country have recognized this and are looking for ways to continue affirmative action–like contracting programs that comport with the developing law.
This Note focuses on existing class-based alternatives to race-based affirmative action in government contracting. Part II describes the history of affirmative action, the state-by-state anti–affirmative action movement, and the theory of class-based affirmative action. Then, three existing programs intended to encourage job development in disadvantaged areas through government contracting will be described, analyzed, and assessed to demonstrate the myriad ways of structuring such a program. Part III synthesizes this analysis, the literature analyzing the effect of these programs, and the theories behind class-based affirmative action into recommendations for public policy makers who wish to continue to use government contracting as a means of impacting socioeconomic policy in the face of the anti–affirmative action movement. This Note is not, however, intended to give due consideration to state-by-state peculiarities such as the differences in state and local contracting law, state constitutional law, and variations in voter approval of government preferences, although these are essential concerns that public policy makers should bear in mind.