Social science and minority "set-asides."

Public Interest, Wntr, 1993 by George R. Lanque

Many local programs were imitations of federal initiatives, and included the same groups and used the same preferential devices. Other programs were established in response to local concerns about employment and economic development in minority neighborhoods. In Dade County, for example, a program giving preference to black-owned businesses was part of a package following the 1980 Miami riots. Elsewhere, as with the construction of the Philadelphia Convention Center and the expansion of the Atlanta rapid-transit system, an MBE program was necessary to build the political coalition needed to support public funding. Other programs, such as San Francisco's, were attempts by new political coalitions to permanently reallocate public contracts away from established white-owned companies. These programs were often nothing more than a new form of racial and ethnic patronage. Some programs, finally, were created in response to actual allegations of discrimination, but the charges were remarkably general. No jurisdiction has ever been found guilty of the kind of racial discrimination in public contracting that was once commonplace in employment, housing, education, and voting.

In fact, it was the widespread requirement that public contracts be awarded to the low bidder, a legacy of the Progressive era, that made discrimination in this area difficult to practice. In other areas where racial classifications have been used for remedial purposes, discriminatory practices were at one time relatively overt. In public contracting, however, the standard low-bid process was designed to protect against discrimination or favoritism of any kind. Of course no system is perfect; discrimination could exist within government in the creation of or communication about contract opportunities. But government controls these procedures and could cure these problems without using racial preferences. Outside government, the borrowing, bonding, or licensing processes could also be biased, but governments can remedy discrimination in these areas through direct regulation. Discrimination could also exist in the relationships between primary and secondary contractors, but few jurisdictions have made such discrimination illegal, or established any procedures for monitoring it or for settling conflicts when they occur.

The disparity-studies gambit

MBE programs have traditionally provided jurisdictions with a mechanism for economic redistribution that did not require them to accuse anyone of discrimination. Croson made this game more complex, since the decision appeared to bar race-conscious remedies unless discrimination was identified. All over the country, jurisdictions began hiring consultants to "prove" the existence of contracting discrimination. But they needed to find this "proof" without actually pointing at any current official or company, since that would raise the issue of sanctions against the discriminator and could lead to a rebuttal. Nor could a jurisdiction's consultant specify the nature of the discrimination in such a way as to suggest that the existing MBE program was not the right solution.