THE SUPREME Court's decision last year striking down a minority set-aside program in Richmond was initially thought to be a threat to the continuation of such programs around the country. But there is still plenty of room for affirmative action efforts of this kind if local legislators read the Richmond case carefully and follow its guidelines. An action by the Supreme Court yesterday illustrates the point.
Hillsborough County, Fla., whose main city is Tampa, initiated a Minority Business Enterprise program in 1978. The plan was designed to deal with traditional discrimination in the construction industry, and at first it was voluntary. Contractors were simply asked to fill out forms indicating whether they had sought out minority subcontractors before making their bids. After much study, debate and the gathering of statistics, however, it was clear by 1988 that very little was changing. The county then took a number of steps to help small contractors of all races and to establish a goal of 25 percent MBE participation in county construction. The goal is flexible. It takes into account the number of qualified firms available for each contract, good faith efforts and the disparity in bids, and it is applied generally rather than to each individual contract. In fiscal 1989, MBE participation was up to 19.6 percent, below the goal but a considerable improvement over recent years.
A group of construction companies challenged the law, and the U.S. District Court in Tampa granted summary judgment, citing the Richmond case as a bar to such plans. The Court of Appeals for the 11th Circuit reversed and ordered the case returned for trial, a ruling that the Supreme Court declined to review this week. The appellate court found a number of reasons to distinguish the Tampa plan from the Richmond one. The former, for example, was based on a countywide statistical record of discrimination in the targeted industry and was narrowly tailored to address that discrimination. The Florida jurisdiction had made an effort to provide a remedy that did not involve a numerical goal and that had failed. It had also assisted small contractors generally in a series of steps that were not race-based. The county's law is really a goal, not a quota, and it is carefully directed at the specific minorities (and women) who had been harmed in the past.
The Supreme Court's refusal to review the 11th Circuit in this case does not, of course, amount to final approval of the Tampa plan. A trial will still be held where the plaintiffs can present their case that the scheme is unconstitutionally unfair to majority males. But the high court has signaled a willingness to consider a variety of minority set-aside programs, not all of which have been foreclosed by the Richmond ruling.