California court voids minority set-aside in wake of Adarand.

A California judge relying on a month-old U.S. Supreme Court precedent restricting affirmative action programs has voided racial preferences in a multibillion-dollar Los Angeles transit authority contracts program.

The trial court decision marks a further erosion of federal affirmative action plans as well as Los Angeles County's local plan. (Cornelius v. Los Angeles County Metropolitan Transportation Authority, No. BC 101 913 (Cal., Los Angeles County Super. Ct. July 27,1995).

"It's a very important case," said Robert Corry, the attorney representing Michael Cornelius, a white male subcontractor who lost a subway construction contract in 1994.

The county transportation agency had said the general contractor for whom he would work failed to hire enough workers from minority- and women-owned companies.

"It's the first case to apply the rationale in Adarand," Corry said. Adarand is the June U.S. Supreme Court decision that found that affirmative action programs must withstand strict scrutiny, meaning that a government must prove that its law will achieve a compelling government interest. In cases where affirmative action is at issue, the government interest is in preventing discrimination against women and minorities. (Adarand Constructors v. Pena, 115 S. Ct. 2097 (1995).)

Set-aside programs "are treating people differently because of their race," Corry said. "We're saying, let's treat everyone the same. The other side is saying, let's treat people differently based on the color of their skin. You tell me which side is racist. "

Los Angeles County set a goal of granting 29 percent of its construction work to minority, firms. It routinely awarded contracts to minority firms that bid as much as 10 percent above the lowest white-owned business bidding on the same contract.

Corry, an attorney with the Pacific Legal Foundation in Sacramento, California, called the Los Angeles County policy an "egregious" set-aside program. Minority businesses, many of them multimillion-dollar firms, are perfectly capable of getting business on their own."

Ruling in favor of Cornelius, Judge Dzintra Janavs cited four reasons for granting Cornelius's summary judgment motion:

* The county failed to first consider race-neutral means to remedy past discrimination;

* The county failed to justify its 29 percent hiring goal, especially since the federal government requires only a 10 percent minority hiring goal;

* The county offered no basis for the 10 percent "overbid" feature of the program; and

* "The program ... favor[ed] recipients based on their membership in a particular group and place[d] the burden on others to rebut the presumption."