City of Tulsa stuns residents by proclaiming it will follow the law – really

August 15, 2014 | By RALPH KASARDA

It must come as welcome news to Tulsa residents to learn that their city officials have finally decided to obey the Oklahoma Constitution.  In November 2012, Oklahoma voters passed an initiative that amended the state constitution by adding Article II, Section 36A.  That provision prohibits any instrumentality of the state from discriminating or providing preferences on the basis of race, ethnicity, and sex in public education, employment, and contracting.  California has a similar provision in its constitution that PLF attorneys have successfully defended and enforced.

The constitutional amendment in Oklahoma apparently meant nothing to city officials, who presumably took an oath swearing or affirming to follow the constitution.  Even after the constitution was amended, Tulsa continued to implement and enforce its BRIDGE program, which stands for “Building Resources in Developing and Growing Enterprises.”  Under that program, Tulsa required contractors who submitted bids for public contracts to make good-faith efforts to subcontract with firms owned by individuals of the preferred race and sex.  A program clearly in violation of the new constitutional amendment – Article II, Section 36A.

The BRIDGE program hit a snag last year when one general contractor submitted the lowest bid on a project for the Tulsa Metropolitan Utility Authority, but refused to comply with the City’s unconstitutional race- and sex-based goals.  Government officials were miffed, and denied the contractor’s bid for being unresponsive.  Undaunted, the contractor sued in federal court to halt the City’s illegal actions, but officials responded by attempting to the have the lawsuit dismissed.  The trial court disagreed with the government defendants and allowed the lawsuit to proceed.  At about the same time, the U.S. Supreme Court issued its decision in Schuette v. Coalition to Defend Affirmative Action, which upheld Michigan’s ban on racial discrimination and preferences.  For an excellent analysis of that case see this post.  PLF’s brief in that case is here.

Seeing the handwriting on the wall, Tulsa officials issued this letter informing the local business community that it discontinued the use of all measures inconsistent with the Oklahoma Constitution.  Better late than never.  If Tulsa really wants to eliminate discrimination and “ensure that small and developing businesses have opportunities to compete in the marketplace,” as the letter states, it can surely do so without the use of suspect classifications.  Why not require that public general contractors hire the subcontractors who submit the lowest bid, and make the bidding process transparent?  If a general contractor didn’t accept the lowest responsible bid, that contractor would have a lot of explaining to do.