Ultima Judge Asks About Impact of Supreme Court College Cases

On December 8, 2022, District Judge Clifton L. Corker asked the parties in Ultima Services v. USDA whether the court should wait to decide the motions for summary judgment now pending until the Supreme Court decides two significant race preference cases that it is currently deliberating. In Ultima, CIR is challenging the federal Section 8(a) program, which allows government agencies to set aside contracts for small businesses owned by members of preferred racial groups. Two cases before the Supreme Court, Students for Fair Admissions v. University of North Carolina and Students for Fair Admissions v. Harvard, could see the Court overturn Grutter v. Bollinger, the 2003 decision that permitted the use of race preferences in college admission decisions.

CIR argued that the court should not wait to rule on the summary judgment motions because the most likely decision to overturn Grutter in the two cases before the Supreme Court would not affect the outcome of Ultima. If the Supreme Court decides to overturn Grutter, it will most likely find that promoting diversity on college campuses cannot justify discriminatory race preferences in admissions. Race preferences in government contracting are not used to promote diversity but, instead, are justified as a remedy to past government discrimination. Accordingly, a holding based on the diversity rationale will not affect contracting. The government defendants agreed that the Supreme Court cases are unlikely to affect the outcome of Ultima, on similar grounds.

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