By Matthew J. Glavin

As published in the Wall Street Journal

This week, another chapter opens in the legal struggle for equal protection
when the city of Atlanta will face a lawsuit over its Minority and Female
Business Enterprise program, which sets aside 34% of its public contracts for
minorities and females. The suit is scheduled to be filed by the Southeastern
Legal Foundation this week in federal district court.


Atlanta will have a tough time making its case. Since 1989, when the U.S.
Supreme Court handed down its landmark City of Richmond v. Croson decision,
not one government-sponsored race preference program has survived court
scrutiny. All have fallen under the weight of the venerable
anti-discrimination and equal protection provisions of the U.S. Constitution
and federal law.


That law is clear: The government must guarantee equal protection for all
people. It must not discriminate against individuals on the basis of skin
color or ethnicity. Gender and race cannot legally be primary determining
factors for allotting public contracts.


Upholding the equal protection guaranteed by the Constitution has been the
major victory of the civil rights movement. The deep South underwent the
painful transition from government-sanctioned segregation to constitutionally
guaranteed equal protection 35 years ago. Government-sanctioned
discrimination against anyone based on the color of their skin was wrong
forty years ago, and it's just as wrong today.


At its inception in 1975, Atlanta's public contracting set-aside program was
designed to redress years of demonstrable discrimination by city government.
Under the program, many minority- and female-owned businesses were given an
unprecedented opportunity to participate in the marketplace. But today, the
program is administered by a minority-controlled city government which will
have to prove in court that it discriminates against minority-owned
businesses in order to keep its set-aside program. That simply doesn't pass
the straight-face test.


Nevertheless, Atlanta's official response to the impending court challenge
has been venomous. Mayor Bill Campbell has declared in the press a "fight to
the death" in defense of city's set-aside program, promising that "we will
not be browbeaten into submission by any judge."


It's hard to see what the city leaders are so worried about. Atlanta city
officials themselves have recently asserted that they do not discriminate and
will not start discriminating against minority-owned businesses. Bizarrely,
they defend the city's program with allegations of "marketplace
discrimination" by majority-owned contractors with whom they do
business--which a set-aside program doesn't address in any event. Never mind,
we are told, the city still needs a race preference program.


The problem is, the city does not enforce its own current anti-discrimination
laws. Ordinances on the books today enable the city to take action against
individual contractors who discriminate. Revoking the contracts, ensuring
that the contractor never work for the city again, and financial penalties
are a few of the remedies available to the city against lawbreaking
businesses. But research reveals that Atlanta has not utilized this important
power in the past decade. That might be a good place to start.


In the Croson decision, Justice O'Connor made it clear that race preference
programs were the last resort to redress ongoing discrimination. Race-neutral
alternatives, including local and small business enterprise programs, must
first be tried and fail before any race preference program could be legally
considered. In any event, the government entity must prove that specific,
ongoing discrimination against minority- and female-owned businesses actually
exists in the discrete marketplace.


In order to prove such discrimination, the government entity is required to
conduct and update a detailed statistical analysis, called a disparity study,
of the relevant industries and occupations that are considered for public
contracts. Atlanta and Fulton County, Ga. (in which Atlanta is located)
jointly commissioned a disparity study to support their respective programs.
In June, a federal district court ruled that the Fulton/Atlanta study was
"fatally flawed," and declared the Fulton race preference program
unconstitutional. Atlanta's identically flawed program appears doomed to the
same fate in the present case.


With the weight of legal precedent tipping the scales against Atlanta's
program, Mayor Campbell and Atlanta's other leaders now have an opportunity
to lead the national trend toward development of legal race-neutral
affirmative action programs for local and small businesses.


For inspiration, they might look to successful race-neutral affirmative
action programs such as those developed in New York, Los Angeles, Detroit,
Milwaukee, and Miami-Dade County. These programs (most of which grew out of
successful legal challenges to race-based programs) focus on the
fundamentals: waiving bonding requirements for small, upstart businesses;
matching small, local businesses with larger companies that help them develop
a workforce and participate in the contract bidding process; crucial
set-asides guaranteed for small and local businesses that truly need the
help. Many of the current models use the "empowerment zone" concept as the
basis for integrating small and struggling businesses into the mainstream
marketplace.


Whether voluntarily or by court order, Atlanta's race preference program will
end. The impact will be felt across the nation, as ever more
governments--federal, state, and local--turn their attention to the next era
in affirmative action. As a nation conceived in liberty and dedicated to the
proposition that all men are created equal, we must remove the remaining
roadblocks of race preference.


Mr. Glavin is president of Southeastern Legal Foundation, a public-interest
law firm in Atlanta.

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