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(Appellate Brief), United States Supreme Court Amicus Brief. Brief of the Naacp Legal Defense and Educational Fund, Inc. as Amicus Curiae in Support of Respondents, ADARAND CONSTRUCTORS, INC., Petitioner, v. Norman Y. MINETA, Secretary of the United States Department of Transportation, et al., Respondents., No. 00-730. August 10, 2001. (Table of Contents Omitted) (Footnotes Omitted)

On Writ of Certiorari to the United States Court of Appeals for the Tenth Circuit


Elaine R. Jones, Director-Counse
lTheodore M. Shaw
Norman J. Chachkin
James L. Cott
H. Stroup
Elise C. Boddie
Lia B. Epperson
NAACP Legal Defense and  Educational Fund, Inc.

*1 Interest of Amicus

The NAACP Legal Defense and Educational Fund, Inc. ("LDF") is a non-profit corporation established under the laws of the State of New York. It was formed to assist black persons in securing their constitutional rights through the prosecution of lawsuits and to provide legal services to black persons suffering injustice by reason of racial discrimination. For six decades, LDF attorneys have represented parties in litigation before this Court and the lower courts involving race discrimination and various areas of affirmative action. LDF believes that its experience in and knowledge gained from such litigation will assist the Court in this case.

Summary of Argument

For hundreds of years, blacks were systematically and violently deprived of the rights and privileges of full citizenship reserved for white men since this country's founding. The adoption of the Fourteenth Amendment in 1868 offered new hope that blacks would enjoy rights long afforded to whites. This promise however, was short-lived.

Following only a decade of Reconstruction, the federal government abandoned the guarantees of the Fourteenth Amendment and its role of protecting newly freed blacks. Instead, it left in place a racially tiered society that continued to privilege whites, and white men in particular, and to deprive generations of blacks of social, political, and economic capital. The most pernicious aspects of this racial caste system were *2 prevalent not just in the South but throughout the country. The exclusion of blacks from the economic mainstream cemented the effects of slavery and the "separate but equal" doctrine sanctioned by this Court in Plessy v. Ferguson, 163 U.S. 537 (1896). As such, by the time this Court finally ended the scourge of legally sanctioned apartheid in Brown v. Board of Education, 347 U.S. 483 (1954), official governmental policy had already established a system that subjugated black citizens much as slavery had done to their ancestors a century before.

The continuing effects of this pervasive racial subordination are evident in the severely depressed socioeconomic standing of the vast majority of blacks. The structural inequalities that social scientists have found limit the educational, employment, and asset-building opportunities of African Americans today are directly and powerfully rooted in this country's long-maintained, governmentally sanctioned discriminatory policies and customs. They are not vestigial, attenuated remnants of amorphous "societal discrimination."

The barriers faced by African Americans, as a class, who seek to establish construction businesses and obtain contracts, are thus very different in nature, origin and intensity from those that may be encountered by individuals of different backgrounds, contrary to Petitioner's suggestion. The Fourteenth Amendment authorizes race-conscious remedies that redress the cumulative effects of centuries of government-sanctioned discrimination against blacks and the exclusion of blacks from the economic mainstream. The Department of Transportation's Disadvantaged Business Enterprise program, therefore, serves the compelling governmental interest of remedying this country's incontrovertible history of racial oppression and of fulfilling the unfinished promise of the Fourteenth Amendment.


I. This Country Maintained A De Jure Racial Caste System That Brutally Enslaved African Americans For Over Two Hundred Years And For Nearly A Century Thereafter Deprived Them Of Fundamental Human And Civil Rights.

Race has been a critical dividing line in American society since the earliest days of colonial settlement. Nearly four centuries ago, blacks were kidnaped and forcibly brought to this country to be sold into slavery. For two and a half centuries, African Americans were held in slavery and deprived of the most basic human rights. There can be no meaningful evaluation of the need for race-conscious remedial measures without first understanding the fundamental role that slavery, racial segregation, and pervasive racial discrimination by public and private actors have played in denying generations of blacks social, political, and economic opportunity while simultaneously conferring significant advantages on whites. "[B]ecause there was slavery … because the vision of others was shaped by slavery, and because most African Americans still experience unpleasant reminders that we are the descendants of those who were enslaved," we must understand and acknowledge the legacy of slavery until it ceases to *4 "constrict the freedom and opportunities of African Americans."

A. The Founding Fathers, Congress, And This Court Sanctioned Slavery.

The Founding Fathers established a government that sanctioned the wholesale denial of elemental human rights to blacks. As Frederick Douglass stated, the United States Constitution "was made in view of the existence of slavery, and in a manner well calculated to aid and strengthen that heaven-daring crime."

During the Constitutional Convention of 1787, the Founding Fathers legitimized and secured the institution of slavery by including several clauses that sanctioned the practice. The Constitution treated a slave as three-fifths of a person for purposes of apportioning Congressional representatives and taxes among the States. The Constitution also contained a clause ensuring that the "Migration or Importation" of slaves would not end before 1808, and a provision prohibiting the amendment of that clause.

The Founding Fathers included a number of clauses that *5 were instrumental in maintaining the institution of slavery. The Fugitive Slave Clause, for example, provided for the capture and return of slaves to their masters. Other provisions called on the federal government to protect the states from domestic violence, such as slave rebellions, and required Congress to call forth the militia to suppress such insurrections. Further, the Constitution prohibited taxes on the exports produced by slaves. In addition, the electoral college provision on its face gave whites in slave states a disproportionate influence in presidential elections, because it counted nonvoting slaves in apportioning representatives to the electoral college. Moreover, none of these provisions could be amended without the agreement of three-quarters of the states. Such provisions clearly show that the Founding Fathers family intended to leave intact a system in which blacks were the chattel of whites.

Congress passed laws that further strengthened the institution of slavery. In 1793 and 1850, Congress enacted fugitive slave laws that empowered the federal government to apprehend fugitives and offered no protection against enslavement to northern blacks who had been born free. Nearly "every free *6 person of color was in imminent danger of being taken up and placed in slavery with no opportunity whatever to establish a valid claim to freedom."

*7 In addition to the scourge inflicted on free blacks by the Fugitive Slave Acts, federal and state governments enacted laws to prevent free blacks from enjoying any of the rights and privileges of citizens. The Naturalization Act of 1790, for example, barred free blacks from becoming naturalized citizens. Four states-Indiana, Illinois, Iowa, and Oregon- closed their borders to blacks altogether. In the Washington and Indiana territories, Congress denied free blacks the right to vote. Franklin, supra n.13, at 24. The individual states followed suit: every state that entered the Union after 1800, with the exception of Maine, restricted the right to vote to white males. Id. at 26-27. Likewise, the Second Congress passed a law establishing a uniform militia throughout the United States, but limited enrollment to white male citizens. Id. at 23.

This Court facilitated the institutionalization of slavery through a succession of cases in the early nineteenth century that confirmed the status of blacks as mere property, see, e.g., Groves v. Slaughter, 40 U.S. (15 Pet.) 449 (1841); The Antelope, 23 U.S. (10 Wheat.) 66 (1825), and solidified Congress's authority "to secure to the citizens of the slaveholding States the complete right … of ownership in their slaves." Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 539, 540 (1842). The power over fugitive slaves, this Court concluded, "was so vital to the preservation of … domestic … institutions, that it … constituted a fundamental article without … which *8 the Union could not have been formed." Id. Other cases held that a person could be liable for damages to a slave owner if caught harboring fugitive slaves, even if the person had no actual notice that the harbored persons were slaves. See Moore v. Illinois, 55 U.S. (14 How.) 13 (1852); Jones v. Van Zandt, 46 U.S. (5 How.) 215 (1847).

Perhaps the most notorious and insidious of these cases was Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857). Dred Scott solidified the wretched standing of African descendants and obliterated any meaningful distinction between the "rights" of free blacks and slaves. The Court concluded that blacks were not intended to be included as citizens but were "regarded as beings of an inferior order … altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect …." Id. at 407. In its ruling, seven members of the Court recognized and upheld the racial caste system in the United States, where no person of African descent, free or slave, would be afforded the most basic rights. Until the ratification of the Fourteenth Amendment in 1868, blacks could claim no rights of citizenship long afforded whites as a matter of course.

*9 B. The History Of The Fourteenth Amendment Demonstrates That The Drafters Intended It To Permit Race-Specific Measures.

The Congress that authored the Fourteenth Amendment recognized that race-conscious governmental policies were not only permissible but clearly necessary to redress the economic and social devastation that for centuries had been visited upon African Americans. Preceding the ratification of the Amendment in 1868, Congress enacted a series of race-specific social welfare laws for blacks, and legislation which, though facially race neutral, was clearly intended to benefit blacks. These measures were required to ameliorate the effects of the "Black Codes" that were adopted by southern states to tyrannize and oppress African Americans. Cong. Globe, 39 Cong., 1 *10 Sess. 39 (1865), reprinted in The Reconstruction Amendments Debates 95 (Alfred Avins ed., 2d ed. 1974).

There is significant evidence that a major reason for the adoption of the Fourteenth Amendment was to ensure constitutional support for the race-conscious legislation passed by Congress. Such legislation embraced a variety of race-specific programs targeted for blacks. Congress enacted laws appropriating funds for "the relief of destitute colored women and children," for "colored" persons in the District of Columbia, and for black Union soldiers. The Freedmen's Bureau Acts adopted by the Reconstruction Congress also authorized relief for blacks, including "provisions, clothing, and fuel" and the sale of up to forty acres for refugees and freedmen. *11 Schnapper, supra n.18, at 760. Later legislation reauthorizing the Freedmen's Bureau provided more explicit protection and aid for free blacks, id. at 772-73, while limiting the Bureau's authority to aid white refugees, id. at 772.

This legislative history illustrates that the drafters - who considered and squarely rejected opposition to Freedmen's Bureau legislation on the grounds that such statutes excluded whites - could not have intended to bar race-specific measures under the Fourteenth Amendment. This is confirmed by early decisions of this Court, which recognized that the "one pervading purpose" of the Reconstruction Amendments was "the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly-made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him." The Slaughter House Cases, 83 U.S. 36, 71 (1873); see also Regents of the Univ. of California v. Bakke, 438 U.S. 265, 398 (1978) (Marshall, J. dissenting); Railway Mail Ass'n v. Corsi, 326 U.S. 88, 94 (1945); Nixon v. Herndon, 273 U.S. 536, 541 (1927); Buchanan v. Warley, 245 U.S. 60 (1917).

C. The Federal Government Maintained De Jure Racial Segregation And Discrimination After Reconstruction And Through the Mid-Twentieth Century.

The hope that Reconstruction would finally unshackle African Americans and place them on an equal social, political, and economic footing soon faded. After barely a decade of Reconstruction, the federal government withdrew from its role *12 of protecting the newly-freed blacks. The Hayes-Tilden Compromise of 1877 resulted in the withdrawal of Union troops from the South and removed "the last military obstacle to the reestablishment of white supremacy there." Southern whites - determined to reassert their dominance over blacks - launched massive campaigns of intimidation and terror throughout the South.

Early efforts to secure white hegemony focused on depriving *13 blacks of their right to vote. With the acquiescence of the national government, blacks were defrauded and intimidated at the polls. Berry, supra n.2, at 81-83. State legislatures adopted voting requirements, such as poll taxes and literacy tests, which had the purpose and effect of further disenfranchising blacks. The advent of the all-white Democratic primary in southern states dominated by the Democratic party guaranteed white supremacy by completely denying blacks political participation. As black disenfranchisement spread throughout the South, blacks' modest political gains were quickly eroded. Blacks were completely deprived of any voice in federal, state, or local government. The effects of the denial of black suffrage were far-reaching. Blacks lacked the power to vote out governments that imposed rigid segregation and that denied them government resources.

Decisions by this Court foreshadowed the government's massive retreat from the guarantees of the Fourteenth Amendment and further betrayed black aspirations of equality. See, e.g., James v. Bowman, 190 U.S. 127 (1903); *14 United States v. Harris, 106 U.S. 629 (1883); United States v. Reese, 92 U.S. 214 (1876); United States v. Cruikshank, 92 U.S. 542 (1875); Blyew v. United States, 80 U.S. 581 (1872). Most notorious among these decisions were The Civil Rights Cases, 109 U.S. 3 (1883), and Plessy v. Ferguson, 163 U.S. 537 (1896). In The Civil Rights Cases, the Court declared unconstitutional the Civil Rights Act of 1875 which had outlawed racial segregation in public accommodations. The opinion, authored by Justice Bradley, concluded that the "private wrong" of racial discrimination in public accommodations was beyond the reach of the Fourteenth Amendment. The illogic of Bradley's opinion could not be more apparent; after two centuries of the systemic oppression and subjugation of blacks in which state and federal resources were used to perpetuate the institution of slavery, this Court determined that a remedy for such deeply rooted injustice was beyond its power. Bradley's opinion fully illustrates the extent to which this Court blinded itself to the exceedingly sorry plight of the newly-freed blacks:

When a man has emerged from slavery, and by the aid of beneficent legislation has shaken off the inseparable concomitants of that state, there must be some stage in the progress of his elevation when he takes the rank of a mere citizen, and ceases to be the special favorite of the laws, and when his rights as a citizen, or a man, are to be protected in the ordinary modes by which other men's rights are protected.

109 U.S. at 25. In Plessy v. Ferguson this Court placed its imprimatur on the "separate but equal" doctrine and enshrined a government-sanctioned racial caste structure for another two generations. 163 U.S. 537 (1896). Disregarding the history and purpose of the Fourteenth Amendment and this country's entrenched racial hierarchy, this Court concluded:

[A] statute which implies merely a legal distinction between the white and colored races - a distinction which is founded *15 in the color of the two races, and which must always exist so long as white men are distinguished from the other race by color - has no tendency to destroy the legal equality of the two races.

163 U.S. at 543. Plessy marked the formal demise of the government's short-lived efforts to right deeply rooted wrongs against blacks. It would not be until Brown v. Board of Education, decided nearly sixty years and two generations later, that this Court would take a decisive step to rectify this country's long legacy of racial persecution.

D. Federal Policies In The Twentieth Century Perpetuated The Status Of African Americans As Third-Class Citizens.

Twentieth-century governmental policies - both before and after Brown - have perpetuated the legacy of slavery and state-sanctioned segregation and discrimination by erecting barriers that depressed black economic advancement and that substantially eliminated opportunities for generations of blacks to amass personal and familial assets. Even with the hard fought victory of Brown and the end of de jure segregation in public schools, blacks continued to suffer the frontal effects of federal policies designed to ensure their status as third-class citizens.

*16 For the first third of the century, the majority of blacks lived in a plantation economy that was "essentially feudalistic." As sharecroppers and tenant farmers, blacks were trapped in an economy that required them to pay more than they earned, and therefore they lived in "perpetual indebtedness [that kept] the tenant farmer nearly … as securely tied to the land and to his landlord as he was under slavery." Even here, blacks were paid less than whites and, consequently, were less able to escape the system.

Although conceived to promote the general social welfare, New Deal economic programs imposed serious barriers to black economic advancement. Provisions of the Social Security Act, insisted upon by southern Congressmen, for more than two decades excluded domestic servants and agricultural workers from old-age pension coverage and unemployment benefits- the core programs of the Social Security Act. The racial effects of this exclusion were dramatic. More than 60% of the excluded workers were African-American, and "in the cotton states of the Deep South (Mississippi, Alabama, Georgia and South Carolina) more than three in four excluded workers were *17 black." For similar reasons, another New Deal measure that brought a measure of economic security to many Americans omitted large numbers of blacks. When Congress adopted the Fair Labor Standards Act in 1938, it incorporated the same agricultural and domestic worker exemptions as featured in the Social Security Act.

With the support and encouragement of state and local actors, the federal government adopted policies that severely limited black home ownership opportunities, thereby depriving blacks of one of the most effective routes to personal and family wealth accumulation. For decades beginning in the 1930s the Federal Housing Administration ("FHA") actively fostered residential segregation. Even after restrictive covenants were outlawed by this Court in 1948, the FHA overlooked devices adopted by neighborhood organizations and private citizens that accomplished the same discriminatory ends as the restrictive *18 covenants. These discriminatory practices, and similar practices by the Veterans Administration, excluded African Americans from major federal housing support programs. FHA deputy commissioner Philip Maloney reported in 1967 that in "a number of large urban centers … virtually no minority family housing has been provided through FHA."

The FHA also institutionalized overtly discriminatory lending practices that denied black families the opportunities to buy homes and accumulate equity. It defined "incompatible racial elements" as grounds for rejecting a mortgage and encouraged appraisers to rely upon physical barriers or racial covenants to guarantee against the encroachment of "inharmonious racial groups." Redlining practices by the FHA and the Federal Home Loan Bank Board continued through the 1970s. Private banks and savings-and-loan associations patterned their lending policies on the discriminatory practices of the FHA, extending the reach of federal policy deep into the private sector. Moreover, these private practices continued into the 1990s. Comparably qualified black families are still rejected for home loans 60% *19 more often than white families. Federal regulators acquiesced in this discriminatory conduct throughout the 1970s and 1980s.

Federal "urban renewal" policy devastated black urban areas. "Slum clearance," officially introduced in 1949, diminished available housing for African-Americans and ripped apart black neighborhoods by destroying local businesses. Along with federal public housing policy that concentrated African Americans in racially isolated, economically depressed areas, urban renewal policies destabilized inner cities, setting in motion a downward economic spiral that further limited blacks' access to capital. Perhaps nowhere are the deleterious ripple effects of these policies more apparent than in the devastation of largely black inner-city urban areas, including severe economic underdevelopment, substandard schools, limited housing, rampant unemployment, and a paucity of jobs that pay a livable wage. The deep involvement of the federal government in these policies not only reinforced previous patterns but lent them "a permanence never before seen," one *20 that "virtually constituted a new form of de jure segregation." The passage of otherwise landmark civil rights legislation has failed to ameliorate the widespread and deeply rooted effects of longtime government policies devised to oppress blacks and to subvert black achievement.

E. Federal Government Policy Has Fostered Pervasive Racial Discrimination In The Construction Industry.

The federal government has perpetuated a highly racially stratified construction industry by protecting segregated trade unions and, in effect, barring blacks from obtaining positions as skilled craft laborers and ultimately positioning themselves to advance in the industry. In the early and mid-twentieth century, black migrants from the South were excluded from all but the *21 most menial construction jobs in the North despite their extensive experience in carpentry and masonry. When blacks began to make inroads in construction, Congress intervened to protect white union members against wage competition from black workers by enacting the Davis-Bacon Act. In the hearings that preceded passage of the Act, advocates for the legislation made repeated racial statements regarding southern workers brought north to work on federal projects. In 1935, Congress acquiesced in and effectively sanctioned the racially exclusionary practices of labor unions when it rejected efforts to include anti-discrimination provisions in the National Labor Relations Act. During the 1970s, federal officials "choreographed resistance to the desegregation of the construction industry." As a result, racially discriminatory practices in construction are more "impregnably secure" than in perhaps any other institution in the United States.

Such discrimination has impeded the entry of African Americans into the construction industry, either as employees or as self-employed business owners. Blacks are "persistently more under-represented among the ranks of self-employed persons in construction than they have been in traditionally discriminatory skilled crafts." And this remains the case *22 despite two decades of affirmative action efforts in government contracting.

These barriers are more than just those experienced by all newcomers to an industry, but rather are distinctly racial in character. In the late nineteenth and early twentieth century, "trade unions frequently were the instrument that forced black workers out of jobs they had traditionally held by replacing them with immigrant white workers after union organization." The unions opposed inclusion of anti-discrimination measures in the National Labor Relations Act. In 1969, white workers held raucous demonstrations to oppose desegregation efforts affecting building trades. Resistance to desegregation continued through the middle and late twentieth century.

For example, black enrollment in apprenticeship programs in Detroit declined between 1957 and 1966, with only 41 blacks enrolled as apprentices out of a total of 2,363, or 1.7% of the total. Detroit's patterns were similar to those existing elsewhere. In New York City, the construction business *23 experienced a boom in the 1980s such that "the value of construction contracts doubled in real terms between 1976 and 1987, which in turn doubled the size of the local construction labor force." However, this building boom "left black workers out in the cold." During this period, black employment in construction declined almost 15 percent. By the close of the 1980s, black underrepresentation in the industry and its skilled trades was worse than it had been in 1970. Similar patterns existed in other major U.S. cities.

Federal anti-discrimination laws have been ineffective in dealing with the pervasive discrimination in the construction industry. Many unions in the building trades successfully evaded laws barring employment discrimination despite decades of litigation. The informality of the construction industry's personnel practices facilitates racial discrimination by "not only creat[ing] natural barriers to outsider groups," but also by "thwart[ing] public policies designed to counter discrimination." Because the construction industry tends to be *24 dominated by small firms that rely on social networks for hiring, enforcement against race discrimination tends to be more difficult and less effective. Deep resistance to desegregation within the construction industry strongly demonstrates that only race-conscious relief can remedy the racial discrimination in the industry.

II. The Effects Of Government-Sanctioned Racial Oppression And Racial Caste Are Evident In The Continuing Economic And Social Disparities Between Blacks And Whites.

Every major economic indicator demonstrates that African Americans continue to experience significant economic disparities compared to whites. In 1999, black median household income stood at only 63% of that of non-Hispanic whites. Blacks earn less than whites in virtually every occupational group. The unemployment rate for blacks is 2.4 *25 times that of the white unemployment rate, and blacks are twice as likely as whites to be in poverty. African Americans lag far behind white Americans in overall wealth. For every dollar of wealth the median white household held in 1999, the median black household held 9 cents. Net worth for the median black household declined between 1994 and 1999 while net worth for white households increased 20%. African Americans are 2.3 times more likely to die in infancy than whites, are three times more likely to be below the poverty level than non-Hispanic whites, and have a lower life expectancy than whites.

Black high school students drop out of school at 1.76 times *26 the rate of white students. Black high school graduates are significantly less likely than their white peers to enter college within a year of graduation. Even at the college level, racial differences in completion rates have increased since the early 1990s. Despite increasing racial diversity in the country generally, the racial segregation of public schools has increased in the past decade.

Black/white segregation in housing - the market that determines one's schooling, peer groups, safety, jobs, insurance costs, public services, home equity, and, ultimately, wealth - "remains the most extreme" of all residential segregation. "No other ethnic or racial group in the history of the United States has ever, even briefly, experienced such high levels of residential segregation." Moreover, unlike the experience of other ethnic groups, segregation of African Americans is not *27 explained by class - "no matter how socioeconomic status is measured, black segregation remains universally high."

These disparities exist, in whole or in part, as a result of racial discrimination and its continuing effects. Blacks experience persistent disparities in family income, a legacy of past and present pervasive race discrimination in housing and in the labor market.

In the labor market, African Americans continue to face the exclusionary barriers created by segregated social networks, information bias, and statistical discrimination. All factors *28 being equal, blacks on average are less likely to receive job offers than whites and can expect to "sample about 50 percent more jobs than whites to get an offer." Black applicants are also "much less likely to be hired by small establishments than large ones and are less likely to be hired for jobs that involve significant contact with white customers." The greater the degree of informality and subjectivity in the hiring process, the greater the likelihood of discrimination. Absent comprehensive federal government protection and regulations, "the prospects of suburban job opportunities for black workers are dismal at best" due to general white "aversion" against blacks.

Distinct racial barriers have also limited the entrepreneurial opportunities of African Americans. While self-employment *29 has been the key to economic success and wealth accumulation for many Americans, blacks "have faced levels of hardship in their pursuit of self-employment that have never been experienced as fully by or applied as consistently to other ethnic groups, even other nonwhite ethnics." For many years during the first half of the twentieth century, many types of businesses were off-limits to African-Americans, and those African-American businesses that did exist were restricted to all-black segregated markets. Barriers to entry prevent blacks from competing in an open market. This has ensured "low levels of black business development and has kept black businesses relatively small."


The barriers faced by African Americans, as a class, who seek to establish construction businesses and obtain contracts, are thus very different in nature, origin and intensity from those that may be encountered by Americans of different backgrounds, contrary to Petitioner's suggestion. While nonblack persons or families may, on an individual basis, experience disadvantages that limit or impede their economic potential, this country's long-maintained, governmentally-sanctioned discriminatory policies and customs continue to this day to systemically impede access to the economic mainstream for blacks. Such racial disadvantage is not - as this Court has sometimes suggested - the vestigial, attenuated remnant of amorphous "societal discrimination," but has resulted from deeply rooted racial discrimination by federal, state, and local government actors as well as private individuals aided by discriminatory government policies.

*30 The powerfully entrenched disparities between blacks and whites that result, accompanied by ongoing racial discrimination, persist in making this country race-conscious, notwithstanding determined efforts by some to deny - in the face of every indication to the contrary - the continuing significance of race:

The appeal of color-blindness is that it projects as moral what is not; by refusing to see and act on the reality of continued discrimination, the color-blind can project themselves as above the fray, unsullied by manipulations of color. This, of course, leaves the problem unsolved, and, even worse, ensures that the problem will be ignored."

This Court should turn away from such a course and hold that the Fourteenth Amendment authorizes race-conscious remedies that redress the cumulative effects of centuries of government-sanctioned discrimination against blacks and the exclusion of blacks from the economic mainstream; and that the Department of Transportation's Disadvantaged Business Enterprise program, therefore, serves the compelling state interest of remedying this country's incontrovertible history of racial oppression and of fulfilling the unfinished promise of the Fourteenth Amendment.

For the foregoing reasons, the judgment of the court below should be affirmed.