OPINION:
Nobody is responsible for encouraging more swindles than the government itself. It’s often impossible to work on behalf of Uncle Sam and his statehouse cousins without first pledging to discriminate “on the basis of race, color, national origin or sex.”
Justice Clarence Thomas identified this problem in a concurring opinion last week that sealed the fate of a paint contractor named Stamatios Kousisis. The Pennsylvania Department of Transportation hired this man’s company to paint a bridge, which he did.
What elevated the matter to the Supreme Court’s attention is the state and federal requirement that 10% of such work be reserved for subcontractors qualifying as a “disadvantaged business enterprise,” or DBE.
Helping “disadvantaged” business owners might appear to be a laudable goal, but the consequences are insidious. The most senior justice noted that elevated eligibility status is conferred only on “Black Americans, Hispanic Americans, Native Americans, Asian-Pacific Americans, and Subcontinent Asian Americans. The DBE program also provides this favorable presumption to women.”
Thus, anyone who checks a box saying he is a White male is not welcome. Excluding some based on their race and sex is a textbook example of discrimination “on the basis of race, color, national origin or sex,” which violates express provisions of federal law and PennDOT’s contracting requirements.
Adding to the absurdity of the situation, once a racial box is checked, government officials “may not question claims of group membership as a matter of course.” The system runs on an honor code without verification, except, for some reason, someone was paying attention this time.
That landed Kousisis in hot water. He used a pass-through subcontractor who didn’t perform any actual labor but qualified as a minority to meet the racial quota. Kousisis appealed his conviction and six-year prison sentence for defrauding PennDOT.
Such fakery is rampant in government transactions, but the high court wasn’t considering whether the real criminals are the ones in Harrisburg who came up with the thousand-page list of prerequisites to earn a commission to swing some paintbrushes. No wonder 40% of the cost of doing anything in transportation goes to filling out paperwork rather than the physical effort of constructing a road or repairing a bridge.
Kousisis doesn’t believe he belongs behind bars because he delivered excellent service at the agreed-upon price, meaning he didn’t harm anyone. None of the justices bought that argument.
Missing out on his calling as a defense lawyer, however, Justice Thomas shed doubt on whether the defendant could possibly have violated a “material” element of an agreement with the state when that element is likely unconstitutional and contrary to a contract clause prohibiting race- and sex-based discrimination.
Justice Thomas reserved that issue “for another day” because it wasn’t an argument Kousisis ever made. That’s a shame, because the government shouldn’t be in the business of dishing out rewards based on evaluations of racial purity.
Democrats have labored hard to perpetuate such standards since their party’s creation in the 19th century by slavery enthusiasts such as Andrew Jackson. From the Civil War to today’s diversity, equity and inclusion agenda, the party has thrived on dividing society against itself.
Regardless of motive, conditioning employment on skin color is a noxious practice, and the country must recommit to the vision of a colorblind society. If Congress won’t repeal retrograde contracting set-asides, the high court ought to take up a case that allows it to do so.
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