Chipping away at set asides and quotas

Fighting the good fight

[Reprinted from Issues & Views February 16, 2004]

This could be called one small victory in a war already lost. Nancy Lauer, in the Tallahassee Democrat (2/10/04), reports that a federal judge has found unconstitutional Florida's law that sets aside "minority participation goals," for state contracts. U.S. District Judge Stephan Mickle claims that such "goals," which are really set asides, violate the Equal Protection clause of the 14th Amendment.

Offering the conventional acknowledgement of America's "brutal racial legacy," which he denounced, Judge Mickle, who is black, declared that he could not condone a state policy that set aside 30% of construction contracts for minority firms, since this constituted a quota system that discriminated against white companies.

Three years ago, Florida's Governor Jeb Bush had attempted a round-about approach to diminishing set asides, with his "One Florida" plan for state contracts. Although the percentages for minorities were left in the law, the Governor classified these as "voluntary," and urged his agencies not to use them. But the state law still prevailed. Lauer writes:

Mickle said that even though state law encourages, rather than requires, a certain percentage of state business be directed to minority- and women-owned firms, it still does not pass constitutional muster because while One Florida is "alleged to be permissive," the law created by the Legislature to implement it is not.

And, of course, the NAACP chimed in, with a spokeswoman insisting that any "race-neutral" plan for state contracting must include a means of allocating to "all races." Besides, she claimed, "There is no such thing as race-neutral." Judge Mickle strongly disagreed.

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