Will Cincinnati award contracts based on race?

Last year the City of Cincinnati agreed to pay a California-based company about $1 million to analyze city contracts for evidence of discrimination. The disparity study, which was actually completed in July, was finally released to the public this week. According to one news report, the study found disparities in City contracting that may justify the use of measures to “even the playing field.”  Another article said the study’s findings could “clear the way” for the City to pass “race- and gender-based preferences in contracting.”

Whoa! Not so fast. Let’s take a quick look at the law and the study.

Cities can’t impose racial preferences as a matter of political expediency. The Equal Protection Clause to the Fourteenth Amendment provides that no state shall deny to any person within its jurisdiction the equal protection of the laws. The Supreme Court interprets this to mean that any person has the right to demand that the government justify any racial classification subjecting that person to unequal treatment under the strictest judicial scrutiny.

That means a contractor of any race can haul Cincinnati into court if the City’s contracting policies subject that person to unequal treatment. A reviewing court will invalidate the City’s use of race unless it is narrowly tailored to a compelling government interest – such as remedying identified discrimination.

The disparity study does not report statistical disparities that would justify sweeping racial preferences for all minority categories. For all prime contracts, the disparity study found no disparities for firms owned by Asian Americans, Hispanic Americans, and Native Americans. The study reports the same findings for both construction and professional services subcontracts.

Would Cincinnati, or any city for that matter, impose a divisive race-based contracting program that provided preferences to firms owned by African Americans and white women, but not to firms owned by Asians, Hispanics, or Native Americans?  When Milwaukee attempted to implement a program providing preferences to some minorities, but not others, it was immediately sued.

Cincinnati shouldn’t have to use race-based measures at all.  The government’s use of race must be as a last resort to resolve widespread and intransigent discriminatory practices that cannot be resolved through race-neutral measures.  In Fisher v. Univ. of Texas at Austin, the Supreme Court held that strict scrutiny imposes on government “the ultimate burden of demonstrating, before turning to racial classifications, that available workable race-neutral alternatives do not suffice.”

In public contracting, race-neutral measures should always be sufficient to remedy discrimination, which is the only compelling interest advanced for preferences in contracting. The disparity study provides 20 race-neutral measures (18 pre-award and 2 post-award recommendations) that Cincinnati could implement to address barriers that minority, women, and small businesses encounter while doing business with the City.

Nondiscrimination can also be assured through greater transparency in the procurement process.  For instance, discrimination in the award of prime contracts can be eliminated through a procurement process that requires the city to accept the lowest responsible bid. That process involves notice of the acceptance of bids, published specifications, and the receipt of sealed bids opened in public. Availing the subcontracting process to public competitive bidding would likewise remedy and eliminate overt discrimination.

By widely publicizing all bidding opportunities in advance, using competitive bidding procedures, and implementing the race-neutral measures recommended in the disparity study, Cincinnati can ensure that both prime contracts and subcontracts are awarded fairly.