Quota Loss: Another blow against government discrimination

National Review Online ^ | March 13, 2002 | Phil Kent

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arch 1 marked another victory in the ongoing war against the use of race- and gender-based quotas by city and county governments. Responding to a lawsuit filed by the Southeastern Legal Foundation, U.S. magistrate judge Brent McKnight signed an order ordering Charlotte, N.C., to abandon its "Minority and Women's Business Development" contracting program in favor of one that is race- and gender-neutral. The order also granted $300,000 in damages to the construction company plaintiff that was discriminated against.

The case represents yet another victory for the Atlanta-based foundation, which has successfully gone to court to dismantle quota contracting programs in Atlanta, Jacksonville, Nashville, and other cities over the past two decades.

The latest Charlotte ruling — and its requirement that the city adopt a legal and effective race-neutral program — underscores a fact that the noisy left-wing lobby doesn't want Americans to know: Since the landmark 1989 U.S. Supreme Court decision City of Richmond v. Croson, not a single local race- and gender-based contracting program has withstood court scrutiny. In the absence of evidence showing that there is ongoing discrimination against minorities and females within the local government contracting process, these programs violate the equal-protection provision of the U.S. Constitution.

Justice Sandra Day O'Connor, who wrote the 1989 Croson decision, laid out the roadmap for states and localities. There are a number of constitutional, race-neutral measures that governments can use, including "[s]implification of the bidding procedures, relaxation of bonding requirements and training and financial aid for disadvantaged entrepreneurs of all races..."

The "disparity studies" required, under U.S. Supreme Court case law, to justify race-based programs have lacked compelling statistical data to confirm ongoing discrimination in dozens of cities since 1989. In fact, "experts" peddling their disparity-study "skills" from city to city have all too often been exposed as simple hucksters, who concoct quick, flawed "studies" and then collect an obscene fee — courtesy of taxpayers.

The way to help disadvantaged businesses gain access to the necessary tools of the marketplace is not by defending an illegal program — as was done in Charlotte and other cities. Rather, the answer is to devise a legal and equitable program that will reach its intended recipients and not just benefit well connected cronies of local politicians. Since the Croson ruling, many cities — from Detroit to New York — have bucked the race hustlers by taking this responsible approach.

Detroit's preferences system for public contracting were struck down as unconstitutional in 1993. City leaders then established a local enterprise program that set goals for local-business participation in city contracts that were focused on geographic location, not race or gender. In addition, the Detroit program also encourages small businesses to participate. (Ironically, the city's legal program now enjoys higher black participation than did the old, illegal program.)

Former New York City mayor Rudy Giuliani presided over a race-neutral program requiring government contractors who use subcontractors to employ local firms for at least 10 percent of the contract. These small, local firms are exempt from having to secure the payment and performance surety bonds usually required of contractors, and receive help in locating working capital.

The Associated General Contractors — a national trade association for construction-related firms that has long opposed race/gender set-asides — also deserves praise. It operates an excellent mentoring program, the Stempel Plan, to aid small contractors of all races. The goal of Stempel is to match a small or new contractor with two older and larger "mentor" firms. Each "protegee" firm can thus be offered technical assistance and advice on bidding for contracts, keeping the books, meeting government accounting standards, and securing surety bonding and capital. The plan has been successful in many cities and states, with the most exceptional standouts being Portland, Milwaukee, and Kansas City.

Aggressively implementing race-neutral public-contracting programs will move states and localities one step closer to achieving a free and open marketplace that offers true opportunity. Radical minority activists and their allies — in the media, in city councils, and in state legislatures — can only expect to face even more court defeats if they attempt to go on treating American citizens differently on the basis of their race.

Phil Kent [is] president of the Southeastern Legal Foundation

[VinnyTex]

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