By Roger E. Dahl

That city affirmative action programs can survive legal attack if properly designed and administered was the primary message of a workshop moderated by George Curry, editor-in-chief of emerge magazine, with Conference President Denver Mayor Wellington E. Webb, Madison Mayor Susan J.M. Bauman and Denver City Attorney Daniel Muse reviewing the current status of affirmative actions programs in cities in light of the continuing attacks on their legality.

The City of Denver program, like many others, has been challenged in federal court by Mountain States Legal Foundation through a firm called Concrete Works of Colorado. A decision is expected soon. Madison, on the other hand, has had a program in place for many years which has not been challenged in the courts or in the political arena.

Denver City Attorney Muse set the stage for the discussion by reporting that, “during the 1980s many local governments established MWBE programs to address the effect of discrimination in public contracting. In 1989, the U.S. Supreme Court ruled in the case of the City of Richmond vs. J. A. Croson Company that the City of Richmond affirmative action program was unconstitutional because it violated the equal protection clause of the 14th Amendment of the Constitution. The City had failed to establish with sufficient specificity that the various beneficiaries of the program had been discriminated against in the local construction industry. In ruling in favor of the J.A. Croson Company, the Supreme Court held that evidence of general societal discrimination was an inadequate basis for concluding that discriminatory practices were employed in Richmond (VA), and that it was incumbent upon the City to specifically quantify the nature and extent of discrimination in that marketplace before a program that would work to the economic detriment of non-minority males could be implemented. The Court then went on to hold that prior to the establishment of any race or ethnic origin based programs, it would be necessary to first attempt race neutral remedies which are narrowly tailored to address any discriminatory activities. The Court’s ruling applied not only to local governments but also to the states….”

Muse went on to say, “in the aftermath of this ruling a number of affirmative action programs have been struck down by various lower and appellate courts. In 1995, the U.S. Supreme Court extended application of the Croson ruling to the Federal government in the case of Adarand Constructors vs. Pena, a case involving Department of Transportation contracting in the State of Colorado.” According to Muse the effect of this “decision further eroded the desire to continue affirmative action program efforts and even contributed to initiatives to abolish all affirmative action programs in various state and local governments nationwide. Many well meaning advocates for these programs simply concluded that the weight of these court decisions would make it virtually impossible to sustain any of these programs.”

Muse then stated, “although this reaction is understandable given the recent history of cases, I am here to inform you that this extreme pessimism is not warranted and that affirmative action programs which aggressively address past and present discrimination against women and minority firms can be fashioned which will address the concerns expressed by the Supreme Court in the Croson and Adarand decisions.”

He went on to say that Justice Sandra Day O’Connor made several things clear: “(1) that under appropriate circumstances race conscious remedies are consistent with the dictates of equal protection; (2) that a municipality has a compelling interest in redressing its own discriminatory acts as well as discrimination in the private sector to which it has become a passive participant; (3) that the government entity need not prove that discrimination existed but merely demonstrate that evidence exists that suggest that more likely than not discrimination has occurred…; (4) that programs can be sustained if a comprehensive study of systematic underutilization of the beneficiaries of the program can be demonstrated and that race and gender neutral efforts have been inadequate measures to address this underutilization; and (5) that programs once established need to be periodically updated to reassess the applicability of continuing race and gender based policies for public contracting.”

In sum, according to Muse, “the reason so many programs have been struck down is because jurisdictions have been imprecise in analyzing the problem and have overreached in fashioning a remedy.”

 Programs have been struck down for the following reasons, he said: “(1) the program rested on generalized assertions of discrimination. General Population Statistics were used to justify the program rather than workforce data; (2) national evidence of discrimination rather than in the local marketplace, (3) failure to examine race neutral remedies; and (4) very aggressive programs using quotas, set asides and preferences.”

A recent example of a well conceived Affirmative Action program that has been determined valid is the Ohio Administrative Services Program. In the case of Ritchie Produce Company, Inc. vs State of Ohio Department of Administrative Services 707 NE 2.d 871 (Ohio 1999), the Ohio Supreme Court by a 7-0 ruling held that its state set aside program was valid because a host of earlier efforts designed to increase minority participation in state contracting opportunities failed to eliminate effects of racial discrimination. They said the program was valid because it was flexible, that it was a goals program, that the program had a direct relationship to the state’s contracting market and that non-minority contractors were not precluded from participating in set aside contracts.

Muse concluded saying, “I am very confident of a favorable outcome, which can then be used as a blueprint for other jurisdictions. Notwithstanding all the posturing and denials by the various opponents of affirmative action, this case overwhelmingly demonstrates that discrimination is very much alive and well, and that rather than ending affirmative action, a greater commitment to these programs should be forthcoming.”