Building Setbacks

Garland L. Thompson

September 20, 1990|By Garland L. Thompson

THE HEARINGS on the fitness of Judge David Souter for the U.S. Supreme Court are of more than passing interest for blacks. After civil-rights advances dating back to 1915, the Reagan Revolution of 1980 began a forceful turning away from the commitment to redress for the people so long held down by law and custom in this color-conscious nation.

And what will happen now that President Reagan is gone, having appointed hundreds of judges to the life-tenure federal bench?

Consider just one of the momentous decisions of the Supreme Court after Mr. Reagan packed it, City of Richmond v. J.A. Croson, in which the Supreme Court struck down a law written to put fairness into dealings with minority contractors. A report submitted to Congress by the Minority Business Enterprise Legal Defense and Education Fund details the harm Croson has caused.

In 1983, before Richmond's law, minorities participated in only 2 percent of the contracts let by a city whose population of 219,000 was more than 51 percent black. Four years later, when a federal District Court ruling halted the program, minority participation approached 40 percent. Six black firms had grown to commercially competitive size; before there was only one.

Minority participation in city contracts and purchase orders was still 11.2 percent in January 1989. But Croson reduced that to less than 6.4 percent by November. During that period, minority construction firms received less than 13 percent of the $9.3 million in city construction spending.

Civil-rights leaders predicted a broad assault on minority-contract programs after Croson, and one ensued. Thirty-seven state and local programs were struck down in lawsuits, including Atlanta's, one of the best-known. After a challenge by the American Contractors Association, the Georgia Supreme Court overturned a lower court to destroy a program that had brought dramatic improvements for minorities in business.

In 1973, before the program, Atlanta blacks won only $41,759 out of $33.1 million of the city's contract dollars, a puny 0.13 percent. That's in a city whose population of 432,080 is 60-percent black.

Then, 600 minority firms with more than 7,200 workers were certified to do business with the city. Starting with the building of the MARTA transit system, Atlanta, Fulton and DeKalb counties granted up to 20-percent participation to minority firms. After 1982, those firms completed more than $200 million worth of public-sector work. In 1988, these mostly black firms won 34.6 percent of Atlanta's $55 million contract dollars.

After Croson, one black firm, E.R. Mitchell Construction, suffered a 50-percent drop in revenues and had to lay off 20 percent of its workers. Mitchell no longer receives joint-venture proposals from larger white firms.

Another 20 minority-contract programs were voluntarily closed after Croson, or reduced to voluntary goals. Across the country, 46 programs are under re-evaluation.

In Baltimore, a City Hall task force compared the city's statute to Richmond's and looked at local history. It concluded:

''There is significant evidence of past discrimination against [minority and women-owned businesses] in the letting of city funded contracts. The histories of the 1980 MBE program and Ordinance 790 indicate that both, in part, were established to remedy the lingering affects of that past discrimination. Moreover, there are consistent allegations of private-market discrimination against [these firms] which indicate that, but for Ordinance 790, there would be continuing discrimination in the letting of City-funded contracts today.''

Some of the evidence came from federal agencies, such as a 1983 Housing and Urban Development report that ''prime contractors had discriminated against [minority firms] in federally funded projects'' and that ''the City's failure to apply, monitor and enforce existing provisions designed to assure minority contractor participation . . . has resulted in exclusion [of minorities] from . . . activities funded by or benefiting from the use of [community development block grant] funds.''

Other cities, such as Chicago, have hired consultants to develop legal defenses for their programs, spending up to $600,000. But not all municipalities can afford that. At some point, Congress must step in.

Maybe Judge Souter will restore some balance and cool some of the zeal to retreat on civil rights. Then again, maybe he won't. But rights must still be protected, even if the nation's highest jurists are determined to look the other way.

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