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Ginsburg, J., dissenting
Minority entrepreneurs sometimes fail to gain contracts though they are the low bidders, and they are sometimes refused work even after winning contracts.6 Bias both conscious and unconscious, reflecting traditional and unexamined habits of thought,7 keeps up barriers that must come down if equal opportunity and nondiscrimination are ever genuinely to become this country's law and practice.
Given this history and its practical consequences, Congress surely can conclude that a carefully designed affirmative action program may help to realize, finally, the "equal protection of the laws" the Fourteenth Amendment has promised since 1868.8
discriminatory responses."); M. Turner, R. Struyk, & J. Yinger, U. S. Dept. of Housing and Urban Development, Housing Discrimination Study: Synthesis i-vii (Sept. 1991) (1989 audit study of housing searches in 25 metropolitan areas; over half of African-American and Hispanic testers seeking to rent or buy experienced some form of unfavorable treatment compared to paired white testers); Leahy, Are Racial Factors Important for the Allocation of Mortgage Money?, 44 Am. J. Econ. & Soc. 185, 193 (1985) (controlling for socioeconomic factors, and concluding that "even when neighborhoods appear to be similar on every major mortgage-lending criterion except race, mortgage-lending outcomes are still unequal").
6 See, e. g., Associated General Contractors v. Coalition for Economic Equity, 950 F. 2d 1401, 1415 (CA9 1991) (detailing examples in San Francisco).
7 Cf. Wygant v. Jackson Bd. of Ed., 476 U. S. 267, 318 (1986) (Stevens, J., dissenting); Califano v. Goldfarb, 430 U. S. 199, 222-223 (1977) (Stevens, J., concurring in judgment).
8 On the differences between laws designed to benefit a historically dis-favored group and laws designed to burden such a group, see, e. g., Carter, When Victims Happen To Be Black, 97 Yale L. J. 420, 433-434 (1988) ("[W]hatever the source of racism, to count it the same as racialism, to say that two centuries of struggle for the most basic of civil rights have been mostly about freedom from racial categorization rather than freedom from racial oppression, is to trivialize the lives and deaths of those who have suffered under racism. To pretend . . . that the issue presented in Bakke was the same as the issue in Brown is to pretend that history never happened and that the present doesn't exist.").
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