The State of Minority- and Women- Owned ... - Cleveland.com

Legal Standards for Government Affirmative Action Contracting Programs
Next, the level of specificity at which to define beneficiaries must be addressed. The State of
Ohio’s Program was specifically faulted for lumping together all “minorities,” with the court
questioning the legitimacy of forcing African American contractors to share relief with recent
Asian immigrants. 142
Third, program remedies should be limited to those firms that have a nexus to the harms sought
to be ameliorated. Some courts have held that state and local programs must provide proof that
the individual owner of a firm seeking to benefit from the program has suffered
discrimination. 143
Failure to make “neutral” changes to contracting and procurement policies and procedures that
disadvantage all small businesses may result in a finding that the program unduly burdens non-
M/WBEs. 144 However, “innocent” parties can be made to share some of the burden of the
remedy for eradicating racial discrimination. 145 To hold otherwise “would be to render strict
scrutiny effectively fatal, in contravention of Justice O’Connor’s clear statements to the
contrary.” 146
Race-based programs must have duration limits. 147 A race-based remedy must “not last longer
than the discriminatory effects it is designed to eliminate.” 148 As held by the Sixth Circuit,
“[n]arrow tailoring also implies some sensitivity to the possibility that a program might someday
have satisfied its purposes.” 149 One of the factors leading to the court’s holding that the City of
Chicago’s M/WBE Program was no longer narrowly tailored was the lack of a sunset
142 Drabik II, 214 F.3d at 737.
143 See, e.g., Associated General Contractors of Ohio, Inc. v. Drabik, 50 F.Supp.2d 741, 766 (S.D. Ohio 1999)
(“Drabik I”) (no “consideration given to whether the particular MBE seeking a racial preference has suffered
from the effects of past discrimination by the state or prime contractors.”); Main Line Paving Co., Inc. v. Board
of Education, 725 F.Supp. 1349, 1362 (E.D. Penn. 1989) (“program contains no provisions to identify those who
were victims of past discrimination and to limit the program’s benefits to them”).
144 See Engineering Contractors Assoc. of South Florida, Inc. v. Metropolitan Dade County, 943 F.Supp. 1546,
1581-1582 (S.D. Fla. 1996) (“Engineering Contractors I”) (County chose not to change its procurement
system).
145 Concrete Works IV, 321 F.3d at 973; Wygant v. Jackson Board of Education, 476 U.S. 267, 280-281 (1986);
Adarand VII, 228 F.3 at 1183 (“While there appears to be no serious burden on prime contractors, who are
obviously compensated for any additional burden occasioned by the employment of DBE subcontractors, at the
margin, some non-DBE subcontractors such as Adarand will be deprived of business opportunities”); cf.
Northern Contracting, Inc. v. Illinois Department of Transportation, 2005 U.S. Dist. LEXIS 19868, *5 (Sept. 8,
2005) (“Northern Contracting II”) (“Plaintiff has presented little evidence that it [sic] has suffered anything
more than minimal revenue losses due to the program.”); Western States, 407 F.3d at 995.
146 Adarand VII, 228 F.3 at 1183 (citing Adarand III, 515 U.S. at 237).
147 Drabik I, 50 F.Supp.2d at 766 (“The 1980 MBE Act is unlimited in duration.… There is no evidence that, at any
time during the nearly two decades the Act has been in effect, the General Assembly has ever reconsidered
whether a compelling state interest exists which would justify the continuation of a race-based remedy.”).
148 Adarand, 515 U.S. at 238.
149 Drabik II, 214 F.3d at 737.
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