Social science and minority "set-asides."

Public Interest, Wntr, 1993 by George R. Lanque

Seattle's disparity study takes a somewhat different approach. It points out that many construction businesses were built after the owner gained practical experience in the trades. Since employment discrimination in the construction industry, particularly against blacks, has been well documented, this might seem to justify racial set-asides. Most major cities, however, have required some form of "Philadelphia Plan" proportional representation in construction employment since the early 1970s. Furthermore, there is no way to quantify the number of M/WBEs that would exist today "but for" discrimination at some time in the past. As the Croson plurality noted, "It is sheer speculation how many minority firms there would be in Richmond absent past societal discrimination, just as it was sheer speculation how many minority medical students would have been admitted to the medical school at Davis absent past discrimination in educational opportunities."

The historical approaches to proving discrimination suffer from a number of additional defects. First, they almost always ignore the impact of immigration on who owns contemporary businesses. In San Francisco, for example, the population of Asians and blacks grew from 4 percent of the total in 1940 to 39 percent in 1990. Naturally, when these groups arrived, they did not find a blank economic slate. The median age of the twenty-five largest construction firms in San Francisco is thirty-five years. None is minority-owned and all were founded before substantial minority populations existed in the city. The oldest San Francisco construction firm, the Bechtel Corporation, was founded in 1898 and is larger than all of the local M/WBE construction companies combined.

Second, since disparity studies are intended to justify the configurations of current M/WBE programs, they do not objectively examine the strengths and weaknesses of the local historical record as they find it. They focus almost all of their attention on discrimination against blacks, where some information usually exists, and then make generalizations about discrimination against other minorities and women, for which there is little or no record. The Seattle study said flatly that creating a specific record for each group was unnecessary, since "research" showed that someone who discriminated against blacks was likely to discriminate against other minorities. It cited no source for that assertion and its own data indicated that blacks reported discrimination twice as often as Asians. None of the studies asked whether Jews or other groups not in current MBE programs might have been harmed by business discrimination.

Anecdotal approaches

If properly gathered and analyzed, anecdotal information about discrimination in public contracting might be valuable, as it has been in other areas where bias has affected decisions. But the data gathered have been seriously skewed.

A common technique has been to use hearings, carefully orchestrated by the bureaucracies operating MBE programs, to collect testimony from MBE owners about discrimination. In San Francisco, hearings went on for days as MBE spokespersons railed about the vicissitudes of doing business. In Baltimore, the chairwoman of the hearings, like some summertime tent evangelist, urged witnesses to come forward and testify to discrimination so that a record could be established that would withstand a Croson test. But almost never did anyone in either city allege discrimination against any specific city agency or private business. Perhaps this was because the witnesses felt too intimidated to name names. Perhaps it was because in cities where the political consensus has produced an M/WBE program there is little, if any, overt contracting discrimination. Seattle took another tack. Within weeks of the Croson decision, the city attorney had twenty M/WBEs sign forms he had prepared that said, "I believe the refusal of prime contractors, developers and owners, etc. to award contracts or subcontracts to my business for private sector work is due to their racist attitude toward me and toward minority primes and minority persons generally."