Set-asides
Set-asides are policies designed to allocate a certain percentage of government contracts, grants, or resources specifically for minority-owned or disadvantaged businesses. Originating from legislative efforts like the Public Works Employment Act of 1977, set-asides aim to address historical discrimination and create equitable opportunities for underrepresented groups. The approach has been the subject of significant legal scrutiny, with landmark Supreme Court cases shaping its implementation and constitutionality.
For example, while the Court initially upheld set-aside programs in Fullilove v. Klutznick (1980), it later imposed stricter standards in cases like Richmond v. J. A. Croson Company (1989) and Adarand Constructors v. Peña (1995), requiring a compelling governmental interest to justify racial classifications. Despite these challenges, subsequent legislation such as the Infrastructure Investment and Jobs Act of 2021 and the Consolidated Appropriations Act of 2023 continued to support and fund set-aside programs. These initiatives remain vital for assisting various groups, including women and veterans with disabilities, in overcoming barriers to business opportunities and fostering a more inclusive economic landscape.
Set-asides
In the Public Works Employment Act of 1977, Congress legislated a 10 percent set-aside of federal grants awarded by the Department of Commerce to minority-owned businesses, intending to remedy lingering discrimination. White contractors who felt discriminated against brought suit. The US Supreme Court, in Fullilove v. Klutznick (1980), upheld the legislation’s constitutionality. Concurring justices argued that Congress has a unique role in eradicating discrimination; dissenting justices contended that Fullilove reinstated race-based preferences and, therefore, was unconstitutional. Subsequently, in Richmond v. J. A. Croson Company (1989), the Supreme Court declared a Richmond, Virginia, plan that required primary contractors to subcontract 30 percent of contract dollars to minority contractors a violation of the equal protection clause of the Fourteenth Amendment. All state and local governmental racial classifications, the Court held, must be strictly scrutinized. In Metro Broadcasting v. Federal Communications Commission (1990), however, the Supreme Court upheld a policy of the Federal Communications Commission (FCC) to increase broadcast licenses to minority groups, affirming proportional representation as a societal goal, even absent past or present discrimination. At the time, strict scrutiny was not yet applicable to the FCC, a federal agency. Later, in Adarand Constructors v. Peña (1995), the Supreme Court declared that a Department of Transportation policy requiring primary contractors to subcontract to certified disadvantaged businesses violated the equal protection component of the Fifth Amendment’s due process clause. Following Adarand, strict scrutiny of racial classification by any governmental agency necessitates demonstrating a compelling governmental interest.
While there have been no additional significant cases since Adarand Constructors v. Peña, the concept of set-asides remained relevant and continued to evolve. The Infrastructure Investment and Jobs Act of 2021 referred to grant programs and investments in infrastructure aimed at specific populations established in previous programs and upheld existing set-aside policies. Similarly, the Consolidated Appropriations Act of 2023 referenced continued funding for specific federal programs without modifying set-aide politics already in place. Set-aside programs continued to offer opportunities to segments of the population that needed assistance in advancing. For example, the Small Business Association continued to extend help to distinct groups, such as women and veterans with disabilities.
Bibliography
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"H.R.2617 - 117th Congress (2021-2022): Consolidated Appropriations Act, 2023." Congress.gov, www.congress.gov/bill/117th-congress/house-bill/2617. Accessed 9 Oct. 2024.
"H.R.3684 - 117th Congress (2021-2022): Infrastructure Investment and Jobs Act." Congress.gov, www.congress.gov/bill/117th-congress/house-bill/3684. Accessed 9 Oct. 2024.
Kang, Jerry. "Rethinking Intent and Impact: Some Behavioral Realism about Equal Protection." Alabama Law Review, vol. 66, no. 3, 2015, pp. 627–51.
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