“A law that grants preferential treatment on the basis of race or ethnicity does not deny the equal protection of the laws if it is (1) a remedy for (2) intentional discrimination committed by (3) the public entity that is according the preferential treatment (unless, as is not argued here, the entity has been given responsibility by the state for enforcing state or local laws against private discrimination, City of Richmond v. J.A. Croson Co., 488 U.S. 469, 491-92 (1989) (plurality opinion)) and (4) discriminates no more than is necessary to accomplish the remedial purpose. … Whether nonremedial justifications for “reverse discrimination” by a public body are ever possible is unsettled … but it is of no moment here, because the County has not advanced any nonremedial justification for the minority set-aside program.”
“There is, to begin with, no credible evidence that Cook County in the award of construction contracts ever intentionally (or for that matter unintentionally) discriminated against any of the groups favored by the program. See Associated General Contractors of Ohio, Inc. v. Drabik, supra, 214 F.3d at 735-37. The County points to evidence that prime contractors are more likely to solicit minority subcontractors to bid for pieces of public jobs than for pieces of private jobs. It calls the difference discriminatory and asks us to infer that until the enactment of the ordinance there must have been discrimination against minority contractors. But that is a non sequitur. Since the ordinance requires prime contractors on public projects to reserve a substantial portion of the subcontracts for minority contractors, but is inapplicable to private projects, it is only to be expected that there would be more soliciting of these contractors on public than on private projects. The alleged discrimination is an artifact of the ordinance.”
Appeals from the United States District Court for the Northern District of Illinois, Grady, J., Posner, J.