Milwaukee's guarantee of inequality
Last month the Hispanic Chamber of Commerce of Wisconsin filed an important lawsuit against the city of Milwaukee over the City’s new public contracting program. In short, the City’s program, spelled out in City Ordinance 370, violates the Equal Protection Clause by requiring contracting officials and prime contractors to discriminate and grant preferences based on race and sex.
Ordinance 370 forces city officials and prime contractors to pick winners and losers by favoring some minorities and women over other male minorities and non-minorities. For instance, on construction contracts, the City and its prime contractors must grant preferences to businesses owned by African Americans, Asians, and women of all races, over Hispanic males, Native American males, and white males. For purchases of goods and services, the City grants preferences to businesses owned by Hispanics, Native Americans, and women of all races, over African American males, Asian males, and white males.
Why does Milwaukee mandate this peculiar unequal treatment? According to the complaint filed in this case, Ordinance 370 is based upon a flawed disparity study that concluded widespread discrimination resulted in the underutilization of certain groups on certain kinds of contracts. The City apparently believes that the only way to combat the reported discrimination is to award contracts based on race and sex until taxpayer money is distributed proportionately according to local demographics. But that practice was condemned by the Supreme Court in City of Richmond v. J.A. Croson Co., concluding it was “completely unrealistic” to assume “that minorities will choose to enter construction in lockstep proportion to their representation in the local population.”
The underutilization of certain groups may not be caused by discrimination at all. Courts have found that disparities can be the result of nondiscriminatory factors, such as the size and ability of minority firms to take on large projects, whether minority firms were already engaged on other projects, whether minority firms were choosing to bid on other more lucrative contracts outside of the geographic area, the firms’ lack of expertise, or the firms’ noncompetive bids. It is telling that of the 5,045 businesses surveyed for the Milwaukee disparity study, only 18 minority-owned businesses complained of discriminatory treatment. No amount of discrimination is acceptable. But each of these 18 complaints could have been investigated and adjudicated without the imposition of city-wide race- and sex-conscious contracting procedures.
Imagine how skewed Milwaukee’s utilization statistics are likely to become a year from now if its discriminatory program is not struck down. The groups disfavored by the City today that do not receive preferences will become underutilized, and the groups that are supposedly underutilized today, will become overutilized. To remedy the new disparities, the City will be forced to adjust its program to grant preferences to the new underutilized groups. Of course, the only discrimination that will have been remedied is the discrimination Ordinance 370 requires in the first place. The pattern will then repeat itself.
In LULAC v. Perry, a case concerning redistricting, Chief Justice Roberts sadly noted: “It is a sordid business, this divvying us up by race.” In cases such as City of Richmond v. J.A. Croson Co., and Adarand Constructors v. Pena, the Supreme Court has held that programs “divvying us up by race” are presumptively unconstitutional. Milwaukee’s race-conscious program flies in the face of that legal principle.
Courts cannot review discriminatory contracting programs unless an individual or group brings a legal challenge. The Hispanic Chamber of Commerce of Wisconsin is to be commended for its courage and leadership in stepping up to the plate. PLF is another organization that litigates against all levels of government that sort, classify, and discriminate against individuals according to their race. To find out about PLF’s Equality Under the Law Project, see here.