Judicial Strict Scrutiny and Administrative Compliance: The Case of Public Contracting Preferences

Abstract

Synopsis What circumstances determine compliance with or resistance to federal judicial rulings in the United States? Compliance may depend on court unanimity, executive branch concurrence, legislative enactment, and stakeholders’ support. Judicial interpretations of the 14th Amendment Equal Protection Clause and various civil rights statutes made discrimination against minority groups and women illegal. However, they have also functioned as a check against political coalitions that seek to use racial and gender preferences in distributing university admissions, public employment, and public contracting benefits in favor of those groups. In its City of Richmond v. Croson (1989) decision, the U.S. Supreme Court held that the standard for review of race-based procurement programs was the strict scrutiny test, requiring a government to have a compelling interest and to use the most narrowly tailored means to achieve its goals. Gender based classifications must pass the “exceedingly persuasive justification” test. When Croson was decided there were more than 230 state and local public preferential contracting programs scattered across the country. Since 1989, lower courts made decisions requiring changes in many federal, state and local preferential contracting programs. But what happened after the courts acted? Were the preferential programs permanently suspended or were they continued with only minor changes or were the court decisions simply defied? Using historical, legal, and political science tools, this paper examines the aftermath of judicial rulings for fifteen local, state and federal contracting programs and the factors determining individual outcomes. This analysis will be used to re-examine theories about judicial compliance in the area of public contracting.