Claims of social and economic disadvantage must be attested to in "signed, notarized certifications." States receiving federal transportation dollars are required to award transportation contracts to the applicant whose tale of woe registers the highest on the clap-o-meter. (The demeaned applicants are on their own for any follow-up showers.)
The Constitution doesn't say the government can't write dumb laws -- as if you didn't know that. It does say the government can't write racially discriminatory laws. And on my description so far, the DOT's Queen for a Day program is merely vomit-provoking.
But the DBE program quickly bounds from being simply grotesque to being actually unconstitutional by imposing a legal "presumption" that minorities (and women) are "socially and economically disadvantaged." Not only does the Queen for a Day program contain racially discriminatory "presumptions," but it also punishes states that do not achieve perfect racial quotas.
If the states receiving federal transportation dollars choose too many queens of the disfavored race, they are required to compile various statistical analyses and submit laborious reports to the DOT. But if -- by total happenstance -- the Queen for a Day program manages to achieve the same result as strict racial quotas would, the state is off the hook. It can get a waiver from the Kafkaesque bureaucratic hoops.
Guess which method of compliance the states keep choosing?
That's not the trick question. This is the trick question: Guess which administration is currently defending the DOT's racist Queen for a Day program before the Supreme Court?
In a case brought by a white guy challenging the DBE program, Adarand Constructors v. Norman Mineta, Secretary of Transportation, the Bush administration has decided to continue the Clinton administration's policy of defending racial quotas by lying about them.
Everyone is against quotas, of course. As the Department of Justice brief insists: "Quotas are expressly prohibited." But these aren't quotas -- it's the government's Queen for a Day program! Moreover, according to the Bush administration, the transportation secretary "will not authorize the use of set-asides except in the most egregious instances." An "egregious instance" would include a state's failure to meet strict racial quotas through the Queen for a Day subterfuge.
Obviously, putting the applicants for transportation contracts on TV to tell their stories is a reality show waiting to happen. (Like the federal government, the clap-o-meters can be set to register extra applause for minorities and women.)
But the Queen for a Day I'd really like to see would put Attorney General John Ashcroft and President George W. Bush on the same stage to explain why the other guy is responsible for the administration's massive resistance to a color-blind Constitution.
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