by Phil Kent, SLF President
As appeared in Charlotte Observer, Wednesday, Jan. 16, 2002
Past government discrimination cannot be fixed by discrimination. The City of Charlotte's Minority & Women Business Development (MWBD) program, in place since 1983, mandates a rigid percentage set-aside for women and minorities for subcontracting done by prime contractors. The problem is that any government quota based on race and gender violates the equal protection clause of the U.S. Constitution.
Last week, United Construction Company in Charlotte sued the City of Charlotte in federal district court alleging this constitutional violation. Despite the fact that United was the low bidder for the city's $2.5 million Sharon Amity/Monroe intersection road improvement project, the city council voted to award the contract to a higher bidder to the tune of an additional $165,000 of taxpayer money. Why? Because United failed to subcontract 6 percent of the project to women- and minority-owned companies.
Under the city's MWBD program, a prime contractor can either self-perform 100 percent of the contract or, if not able to self-perform, must subcontract out a fungible percentage to women and minorities. In United's case, the firm needed only 1.2 percent performed by a subcontractor that, incidentally, is a woman-owned business. They did not need to subcontract 6 percent, yet to qualify under the Charlotte program, United would have had to "invent" 4.8 percent more work for subcontractors. Not only is that unconstitutional, it's bad business. Perhaps millions of unnecessary taxpayer dollars have been spent to prop up this program.
In another disturbing turn, "certified" minority- and women-owned businesses receive early notice of all city projects, while non-minority companies receive no such notice.
It should be pointed out that, since the 1989 landmark U.S. Supreme Court decision on government quota programs, City of Richmond v. Croson, not one government race-based quota program has survived court scrutiny anywhere in the U.S. The high court has said repeatedly that governments will be subjected to the strictest scrutiny when they use race and, to a lesser degree, gender to decide to whom they grant benefits. Programs must be narrowly tailored to meet a compelling government interest, namely, to combat discrimination.
One of the first questions the federal courts ask in these cases is whether the city has attempted a race-neutral program to remedy discrimination. In Charlotte's case, the answer is no.
Yet there are literally dozens of effective, legal, race-neutral affirmative action programs in place throughout the nation. Consider just one. In 1993, the city of Detroit's race-based quota program for public contracting was struck down as unconstitutional. In response, Detroit developed a race-neutral contracting program with set-asides for local and small businesses. Today, the program boasts a higher minority participation rate than its old, illegal quota program. Varieties of this program have been successfully implemented in Miami-Dade, New York, Los Angeles, Milwaukee, and a host of other municipalities and counties.
Southeastern Legal Foundation, the Atlanta-based public interest law firm representing United, has successfully litigated a number of quota cases, including Richmond, Nashville, Atlanta, and Jacksonville, Florida, a case that secured an important 1992 U.S. Supreme Court decision. Along with our co-counsel, Parks, Chesin, Walbert & Miller, the attorneys have a long history of striking down race-based programs. But the goal is much bigger.
Charlotte is a great city with a diverse and growing population. Its public programs should reflect that diversity in a legal way. Developing a new, legal, and race- and gender-neutral program for public contracting is a bold step for this forward-thinking city. Existing programs across the nation can serve as an effective blueprint, enabling city leaders to quickly enact a legal program.
Doing the right thing for all citizens means not harming some for the benefit of others, particularly based on race and gender. Government-sponsored discrimination in the form of segregation was wrong forty years ago, and it's just as wrong today when a government discriminates on the basis of race. Racial equality and a level playing field can only be achieved when anti-discrimination laws are vigorously enforced and all citizens are given the chance to participate. Until that time, Charlotte faces a tough road in defending its quota program.
