Affirmative action program has unconstitutional race quota
STATEMENT BY PHIL KENT, SLF PRESIDENT, Jan. 8, 2002
Today, the Southeastern Legal Foundation, along with our co-counsel from Parks, Chesin, Walbert & Miller, P.C. in Charlotte, have filed a lawsuit in federal district court in Charlotte challenging the constitutionality of the city's Minority & Women Business Development (MWBD) affirmative action program. Our plaintiff, United Construction Company of Charlotte, was denied a contract for a road improvement project in Charlotte, despite the fact that they were the low bidder. Instead, the city gave the $2.5 million contract to a higher bidder because the bidder was able to show that they gave six (6) percent of the contract to a minority subcontractor. The contract cost Charlotte taxpayers an additional $165,000.
Charlotte's MWBD program is presumptively unconstitutional because it uses race- and gender-based quotas to determine the awarding of public contracts. The city's program sets both annual and project goals for racial quotas for all construction projects over $100,000. The only way a bidder can show good faith under the program is to actually meet the quota.
Since 1989, not one race-based government program for public contracting has withstood court challenge anywhere in the U.S. The U.S. Supreme Court has said that racial quotas must be narrowly tailored to remedy discrimination in fact; but, the court has said that the compelling state interest to remedy past discrimination does not outweigh the duty of government not to discriminate today based on race. Bottom line -- racial and gender quotas are discrimination.
Government-sponsored discrimination was wrong 40 years ago with segregation, and it's just as wrong today -- according to the U.S. Constitution and the 1964 Civil Rights Act. There are dozens of legal, race-neutral programs being used by cities and counties across the nation. These programs focus on local business enterprise and small business enterprise goals, rather than race. In the City of Detroit, for example, after its illegal quota program was struck down in 1993, the city adopted a local business enterprise program that today has a higher minority participation than its old program. We will be urging Charlotte to adopt this type of program.
We are ready, willing and able to assist Charlotte officials in the development of a new, legal, and forward-thinking affirmative action program. Until such time, however, we will move forward with today's lawsuit.
Please visit the Affirmative Action section of SLF's Case Center on our home page for a copy of the complaint filed in federal district court, United Construction Company v. City of Charlotte.
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