Court Bars City ‘Set-Aside’ Policy Based on Race: School Districts Advised to Review Similar Plans

By Nancy Mathis — February 01, 1989 8 min read

The U.S. Supreme Court’s decision invalidating a Richmond, Va., set-aside program for minority contractors casts a legal shadow over similar programs operated by school districts nationwide, experts said last week.

Even those plans that use flexible goals instead of mandated quotas may not be exempt from the “strict scrutiny” of the courts, lawyers contended.

Several school officials interviewed in the wake of the High Court’s Jan. 23 decision in City of Richmond v. J.A. Croson Company said they believed their affirmative-action programs for minority contractors and vendors would pass a constitutional test because their policies call only for a “good faith” effort to achieve minority-participation goals.

Lawyers, however, said that while using flexible goals instead of strict quotas may provide some protection, such affirmative-action programs could still be targeted for judicial review if districts fail to follow the Court’s guidelines.

The majority held that, to be constitutional, such programs must pass a two-part test: They must be based on documented evidence of discrimination against the group whose interests would be boosted by a “race-conscious” program; and the program must be narrow “in scope and duration” to address the specific area of discrimination.

“The fact that [districts] have goals and not quotas makes a difference, but that alone is not sufficient,” said Elliott Mincberg, an education-law expert.

The lack of rigid quotas may help districts pass the second part of the Court’s test, he said. But they must first establish that there has been a pattern of exclusion affecting minority contractors in their community.

“If their justification for the goal is totally inadequate--for example, if the program’s sole objective is to address the problems of societal discrimation and they say nothing about the scope of the problem locally--then a judge may strike it down,” Mr. Mincberg said.

For example, the Dade County, Fla., district, which is about to start the nation’s most expensive school-construction program, hired the accounting firm of Coopers and Lybrand to determine whether the district had discriminated in its contracting procedures before it adopted an affirmative-action plan in 1985.

August Steinhilber, general counsel for the National School Boards Assocation, said he would strongly advise districts with a race-conscious plan “to turn it over to their attorney immediately for an independent review.”

Mr. Steinhilber added that districts would be well advised not to try to mask a quota by simply labeling it a goal. “If it looks like a duck, waddles like a duck, and quacks like a duck, it’s a duck,” he said.

‘We Will Be Affected’

Like Richmond’s city council, the local school district also set aside 30 percent of its construction fund for minority contractors. “We will be affected by the decision as the city was,” said Arthur J. Johnson, a spokesman for the district.

The Richmond district currently has no construction projects under way or planned, he added, so the ruling will have no immediate impact.

In Prince George’s County, Md., where school officials are facing a new federal lawsuit related to their race-based teacher-assignment policy, Superintendent of Schools John A. Murphy said officials planned to examine their affirmative-action policy “very carefully” in light of the ruling.

The suburban Washington district uses a “point system” in its contracting procedure, with qualified minority firms receiving extra points to make their bids more attractive.

The district tries to award 10 percent of its procurement funds to minority firms, Mr. Murphy said.

The District of Columbia school district, like the city’s government, has a set-aside program requiring that 35 percent of its products and services be purchased from minority-owned firms.

The impact of the Supreme Court ruling on the program is unclear since the Congress in effect sanctions all laws enacted by the city and school district.

In its decision, the High Court left federal set-aside programs intact on the ground that the Congress may make any law in support of the 14th Amendment. Some city officials contended last week that the federal protection would extend to city and school programs as well.

Policies Seen Adequate

School officials in Birmingham, Ala., Dade County, Dallas, Houston, and Oakland, Calif., said they believed their programs would pass judicial muster because they were drafted on the basis of language in previous affirmative-action rulings.

“The Supreme Court, as I read it, was talking about government contracts that give preference to minorities,” said Carl Kennedy, the Oakland school district’s purchasing affirmative-action-compliance officer. “We do not have set-aside programs. We do not give preference to minorities. We do require those bidding with us to make a good-faith effort to include minorities.”

Enacted a decade ago, Oakland’s program is one of the oldest in the country. Soon after its adoption, it survived a court challenge by the Associated General Contractors of America, a party also in the Richmond suit.

“Our’s is just a goal, not a quota,” explained Rose Barefield-Cox, director of minority business enterprises for the Dade County school system. “A goal is what we attempt to achieve. If we fall short, no one is penalized.”

Don Hicks, a Dallas civil-rights attorney who helped draft the Dallas school district’s new procurement policy, said an affirmative-action program that heeds past directives from the Supreme Court should survive legal scrutiny.

Called ‘Defensible’

Dade County’s program, its officials believe, could withstand even the “close scrutiny” the Court called for last week.

The outside audit of its procurement practices, they point out, turned up instances of discrimination in race and gender. The district consequently established a policy that set a 10-year goal of having 52 percent of procurement funds for purchasing and construction awarded to minority- and female-owned firms.

School officials set up seminars to instruct minority firms on bidding procedures and practices. They work with minority firms and link them to white-owned companies interested in a joint venture or looking for a subcontractor.

White-owned companies are strongly encouraged by district officials to include minorities.

Many school districts operate similar programs. In Birmingham, the school board gave tentative approval to an affirmative-action plan last week, the day after the Supreme Court decision, and set final approval for February.

“I think our program is defensible,” said Cleveland Hammonds, Birmingham’s superintendent.

The major difference among district programs lies in the percentage goals they set. For instance, the minority-participation goal is 25 percent in Oakland and Dallas and 15 percent in Houston. Birmingham has yet to set a goal.

With the exception of Oakland, the districts surveyed last week fall far short of their goals. The participation rate in Dade County is 16 percent and less than 10 percent in Dallas and Houston, where school officials enacted procurement plans less than a year ago.

Minority Pressure

School officials in those and other urban districts argue that they are caught between the heightening federal pressure on affirmative-action policies and opposing pressure from minority populations demanding a greater share of business opportunities.

In several recent instances, urban school districts approved affirmative-action programs only after coming under attack by the minority business community--or in seeking minority support for major bond issues.

Dallas, for example, in 1985 won a $195-million bond issue--at the time the nation’s largest--after district officials pledged that minority businesses would be awarded a larger share of the construction work.

Still disgruntled with the district policy, which pledged only “a good faith effort,” minority businessgroups then backed a school-board candidate who won and pushed for a more strongly worded policy setting a goal of 25 percent participation.

In Dade County, where voters approved a $980-million bond issue in 1987, Janet McAliley, a school-board member, said similar assurances were made to minority businesses in return for their support of the bond issue. The district soon will embark on its first $200-million phase, but some minority business owners are already incensed by the pace of affirmative-action efforts.

“We did make those promises,” said Ms. McAliley. “It’s something we’re going to have to live up to. A lot of minority people have contacted us saying, ‘You promised us, now give us a piece of the action.”’

In Houston, Melody Ellis successfully championed an affirmative-action plan last year, her first as a board member, after minority business owners complained of unfair treatment. Previous proposals had failed to gain board approval.

“We want to give people equal access and equal opportunity,” said Ms. Ellis, who is now president of the board. “I think a lot of times minorities were overlooked.”

Officials predicted last week that districts would maintain their commitment to affirmative action.

“All of us participate in paying the bills of an institution like the public-school systems, so I think they should be in the business of affirmative action,” said Thomas G. Jones, a Dallas school board member.

It is through such programs, said Mr. Kennedy, that minority contractors “show they are as competitive and their work is just as good as any majority contractor’s. It gives them confidence that they can compete on the same level.”

In Birmingham, where only 7 percent of the school district’s contracting funds go to minority-owned firms, opposition from white-owned companies is developing to the proposal. The city already has been sued over a similar program.

Superintendent Hammonds questioned whether the court’s majority understood the reality of race relations, saying, “I think it is a tragic mistake to think we have a race-neutral society these days.”

A version of this article appeared in the February 01, 1989 edition of Education Week as Court Bars City ‘Set-Aside’ Policy Based on Race: School Districts Advised to Review Similar Plans