At its June meeting, the Bainbridge Island Race Equity Advisory Committee discussed possible content for a future Equity/Diversity Training session for members of the City Council. The discussion was light on specifics. Instead, REAC members hoped the training would provide (1) a “foundation” for understanding institutional racism, (2) a “shared language” to help REAC and the City Council communicate about racism, and (3) a “statement” at the end of the session expressing a “shared value.”

During the discussion, there was a question about the city’s newly hired Equity and Inclusion manager, and what expectations exist for that office. A partial answer was provided by the assistant city manager, who suggested that the equity manager could help prepare a new Women- and Minority-Owned Business Program, to direct city contracts to women and minority-owned businesses.

REAC seemed to embrace that suggestion with little discussion. But because there are constitutional issues raised by such a program, I offer the following modest proposal: any future “Equity” Training sponsored by the city should review the requirements of the Equal Protection Clause of the 14th Amendment of the U.S. Constitution.

The Equal Protection Clause mandates that, “No State shall…deny to any person within its jurisdiction the equal protection of the laws.” An integral part of “the Great Amendment,” this post-Civil War provision embodied the “new birth of freedom” called for by President Lincoln in his Gettysburg Address. It constituted a “Second Foundation” of the American Republic, seeking to vindicate the promise of equality set forth in the Declaration of Independence. “Purchased at the price of immeasurable human suffering,” the 14th Amendment has served as the primary engine in our history for the expansion of civil rights and the advance of human freedom.

The “core purpose” of the Equal Protection Clause is to “do away with all governmentally imposed discrimination based on race.” But “[e]liminating racial discrimination means eliminating all of it.” Students for Fair Admission (SFFA) v. Harvard, 600 U.S. ___ (2023), slip op. at 15. The Equal Protection Clause is “universal in [its] application.” It protects everyone – white, black, brown, and all other shades of skin color – and does not defer to purportedly “benign” programs of racial preference any more than it does to instances of invidious discrimination. All such racialized schemes are “presumptively invalid.”

The 14th Amendment “protects persons, not groups,” Adarand Constructors, Inc. v. Peña, 515 U.S. 200, 227 (1995), a point typically ignored by the group-focused rhetoric of contemporary “equity” advocates. For that reason, “whenever the government treats any person unequally because of his or her race, that person has suffered an injury that falls squarely within the language and spirit of the Constitution’s guarantee of equal protection.” Id. at 229-30.

Any effort by governments to treat people differently based on race or ethnicity triggers “a daunting two-step examination” from American courts known as “strict scrutiny.” Under that standard, the court first asks whether the racial classification is used to advance a “compelling governmental interest.” If so, the court then examines whether the government’s use of race is “narrowly tailored—meaning ‘necessary’—to achieve that interest.” SFFA, slip op. at 15.

Given the rigor of that “strict scrutiny” standard, the Supreme Court has “identified only two compelling interests that permit resort to race-based government action. One is remediating specific, identified instances of past discrimination that violated the Constitution or a statute. The second is avoiding imminent and serious risks to human safety in prisons, such as a race riot.” Id. Attempts to alleviate the “effects of societal discrimination” arew not a compelling interest. The court has held that “[s]ocietal discrimination, without more, is too amorphous a basis for imposing a racially classified remedy.” Wygant v. Jackson Bd. of Ed., 476 U.S. 267, 276 (1986).

This bears directly on any city program to provide racial preferences in granting government contracts. Such programs have been upheld only under narrow circumstances – specifically, only if (1) there is “a strong basis in evidence of discrimination in the [relevant] industry,” and (2) “the remedial program [is] limited to those minority groups that have actually suffered discrimination.” Western States Paving Co. v. Washington State DOT, 407 F.3d 983 (9th Cir. 2005).

As the foregoing indicates, a city program extending preferences based on race, ethnicity, or gender is not quite as simple as the casual reference at the REAC meeting might suggest. A review of Equal Protection requirements would therefore be a useful component of any “Equity” training that the city provides. And who knows, if a genuine understanding of Equal Protection principles can be achieved, it might even generate a “shared value” whereby, in the words of Chief Justice John Roberts, governments finally disavow the “sordid business” of “divvying us up by race.”

Joe McMillan is a long-time BI resident. He practiced law in Seattle for 25 years before retiring in 2020.