Social science and minority "set-asides."

Public Interest, Wntr, 1993 by George R. Lanque

FOR THE PAST half century, government agencies and the courts have relied on social scientists to define and measure discrimination. The most famous result was the Supreme Court decision in Brown v. Board of Education, which cited the work of Kenneth Clark, Gunnar Myrdal, and other social scientists to prove that segregation harmed black children. In countless decisions and reports since, social-science research has been used to attack racial classifications and stereotypes.

Now, in an ironic reversal, the social sciences are being massively employed to protect racial classifications. In the eighteen-month period between January 1991 and June 1992, state and local governments spent more than $13 million on what have become known as "disparity studies." The federal government's Urban Mass Transit Authority spent an additional $14 million.

The disparity study is the strange fruit of the most significant civil-rights decision of the 1980s, City of Richmond v. Croson. In 1983, Richmond began to "set aside" 30 percent of its contracts for minority business enterprises (MBEs). Six months later, the J. A. Croson Company was the low bidder on a project to install urinals in the city jail, but was denied a contract because of the set-aside provision. Croson filed suit. After the case bounced around various courts for six years, the Supreme Court ruled 6-3 that the set-aside requirement violated Croson's 14th Amendment right to equal protection. The Court further declared all use of racial classifications by state and local governments to be subject to "strict scrutiny." This meant that the kind of racial categories common in affirmative-action programs could only be used to remedy identified discrimination, and then only if the measures were narrowly tailored and employed only after raceneutral remedies had failed. Justice Marshall complained that the decision was a judicial strait-jacket. Justice O'Connor, however, writing for the plurality, noted that Richmond had offered "no evidence that qualified minority contractors have been passed over for City contracts or subcontracts, either as a group or in any individual case." Nor did Richmond present any evidence about how many MBEs were in the relevant market and how many city dollars they had received. Finally, there was no evidence of discrimination against the various minority groups Richmond had included in its program; for that matter, there was no evidence that Richmond even had any citizens belonging to certain of those groups--Eskimos and Aleuts, for instance.

"Proper findings," O'Connor declared, "are necessary to define both the scope of the injury and the extent of the remedy necessary to cure its effects." Without such findings, she noted, MBE programs might be motivated by simple "racial politics." She then invited jurisdictions to conduct a statistical comparison to see if there was a disparity between the number of qualified, willing, and able MBEs and their utilization in a locality's contracts. If a significant disparity existed, then "an inference of discriminatory exclusion could arise."

Croson stands as a challenge to the use of racial classifications in any government program. It has been used to strike down a proposal for all-black-male schools in Detroit and black-only university scholarships in Maryland. But obviously, its greatest threat is to the future of MBE programs using racial classifications.

MBE program characteristics

By 1989, there were 234 minority set-aside programs in states, counties, cities, and special districts across the country. Generally they covered businesses owned by members of the traditional affirmative-action groups (blacks, Hispanics, Asian Americans, Native Americans, Eskimos, Aleuts, and women), but occasionally, as was the case in Atlanta, Georgia, and Dade County, Florida, only blacks were eligible. The programs employed a variety of devices to increase the number of contracts for MBEs and for women business enterprises (WBEs). Some jurisdictions, such as Washington, D.C., had a statutory set-aside, in this case 35 percent. Others, including Hillsborough County, Florida, determined the maximum number of subcontracts that could be created in a particular project and established a goal that as a practical matter required all of the subcontracts to be filled by MBEs or WBEs, if they were available. Still other jurisdictions, such as San Francisco, created bidding preferences for M/WBEs on primary contracts along with goals for subcontracts. Dade County used set-asides, goals, and what it called affirmativeaction efforts that required contractors (mostly non-local) to make contributions to black civic and charitable organizations. In addition, a number of federal agencies--including the Federal Aviation Administration, the Urban Mass Transit Administration, the Federal Highway Administration, the Department of Energy, and the Department of Housing and Urban Development--established programs requiring state and local governments to implement M/WBE goals or set-asides as a condition for receiving federal funds.