Local Fallout from Supreme Court Precedents
Wednesday, July 20, 2005
By JAMES AHEARN
SANDRA Day O'Connor was a ghostly, unrecognized presence in Englewood City Hall recently when the City Council lamented the absence of blacks and other minorities at local construction projects.
Work has begun on redevelopment of 14 acres where an aging industrial building sat north of Route 4 into "The Brownstones at Englewood," an upscale assemblage of 350 apartments, a health club and a 12-story office building. South of the highway, the same developer wants to put up 399 apartments, a hotel and another office building.
The Englewood School District has broken ground for an eight-classroom early-childhood building at the Donald A. Quarles Elementary School. It is the first of several school projects financed by a $46.6 million bond issue approved by voters in 2003.
All of which should be good news for Englewood. But not everybody is benefiting. Stanley Simmons, a black man with construction experience, told the council recently that he was looking for work in the city and hadn't been able to find any.
"We have a tide of construction, and the problem I have is all boats are not rising with the tide," he said.
Absolutely, said Deborah Jones, representing a group called Mothers of All Colors: "We need to fight now to get jobs for blacks, minorities. We can help build this town, now that you're going to build these rich buildings."
City officials did not disagree. But there are obstacles, they said. The first is that the apartment and office buildings are private, not government, projects, and the city can't dictate who gets hired. However, said the mayor, Michael Wildes, the city can, so to speak, encourage developers to consider minority-owned firms. "But it has to be done legally," he said. Indeed.
The school board, for its part, is thinking of commissioning a "disparity study" to see whether minorities and women have historically been shut out of school contracts. The board has hired special counsel to see what such a study would entail. Thereby hangs a tale.
It goes back to 1989, when the U.S. Supreme Court, in a decision written by Justice O'Connor, struck down a plan by Richmond, Va., to require city contractors to subcontract 30 percent of their work to minority business enterprises, defined as at least 51 percent owned by black, Hispanic, Asian, American Indian, Eskimo or Aleut citizens. I bet there aren't many Aleut contractors in Virginia. The plan made no provision for female contractors.
O'Connor said no evidence had been introduced to show that the city had discriminated against minorities in letting contracts, or that Richmond's prime contractors had done so. The court had previously held that it was unconstitutional for a state or local government to discriminate in favor of one race over another unless there was compelling evidence of past discrimination in similar circumstances. Even then the remedy had to be narrowly tailored to remedy the specific problem. The Richmond plan failed on both counts, O'Connor held.
Six years later, in another ruling by O'Connor, the court extended this reasoning to apply to federal as well as state and local government work. A white-owned Colorado firm had lost out on a guardrail project to a Hispanic-owned company even though its bid was higher. The contract was issued pursuant to a policy that presumed blacks and other minorities deserved a break because they were "socially disadvantaged."
The presumption is unsupportable, wrote O'Connor, joined by four other justices including Clarence Thomas, the court's only black, who declared that although the policy may have been adopted with good intentions, its paternalism did not conform to "the principle of inherent equality that underlies and infuses our Constitution."
You might suppose that this would have squelched further efforts to set aside contracts for minorities. Not so. The task became, "How do we justify special treatment for minorities? How do we prove they have suffered discrimination?" In 1985 the New Jersey Legislature, then controlled by Democrats, and Republican Gov. Thomas Kean enacted a law guaranteeing minority- and female-led firms 10 percent of all the construction contracts issued by the state. Fifteen years later Gov. Christie Whitman established a commission with this mission: Find defensible evidence of discrimination. The commission has yet to submit a report.
A consultant was hired but was fired when Democrat James E. McGreevey became governor. He also reconstituted the commission, appointing all new members, 22 of them. New consultants were hired. Then the state attorney general, Peter Harvey, was obliged to settle a lawsuit brought by a white Rockaway Township surveying firm, GEOD, which contended it was unfairly losing jobs because of the set-aside law. As part of the settlement, the state abandoned the set-aside program. Nevertheless, the commission's disparity study went forward.
A consultant has reportedly found that qualified blacks didn't get many construction contracts from 2000 to 2002, but evidence of under-representation was less conclusive for Hispanics and women. It seems doubtful that evidence of deliberate discrimination will be found.
James Ahearn is a contributing editor and former managing editor of The Record.
Paid for by Friends of Michael J. Wildes, Claudia Colbert, Treasurer