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Court's Jacksonville decision opens affirmative action plans to increased litigation.

On June 14, almost four and a half years after the Supreme Court handed down its landmark decision in City of Richmond v. Croson invalidating that city's minority business enterprise [MBE] set-aside program, the Court has touched again on an MBE program in Northeast Florida Chapter of the Associated General Contractors [AGC] v. City of Jacksonville.

This time the justices were not asked to rule on the constitutional merits of an MBE program but on who has the legal standing to challenge it. The Jacksonville case and some other lower court decisions suggest that cities may expect more litigation whenever they employ racial or gender classifications and that defending these classifications will be more difficult than before.

The Jacksonville decision focused on the issue of who had standing to litigate the MBE program and whether since the City had modified its program the original lawsuit was moot. The Court found that the plaintiffs[AGC] had standing and that the case was not moot.

Participants in the controversy over MBE programs will mine the decision for clues about the rules this court [minus Justices Marshall and Brennan] will enforce when it engages MBE programs again on their merits. Naturally in a case focused on procedural matters, the court did not announce those rules, but there are some tantalizing hints.

The seven person majority opinion authored by Justice Thomas announced a broad standard for defining 14th Amendment injuries. He said when the government erects a barrier that makes it more difficult for members of one group to obtain a benefit, then they have been injured whether the benefit would have actually been obtained but for the barrier. Regarding mootness, the majority said the new ordinance, "may disadvantage them (AGC) to a lesser degree than the old one, but insofar as it accords preferential treatment to black and female-owned contractors... it disadvantages them (AGC) in the same fundamental way."

After Croson was decided, an article in this newspaper predicted that the ruling would "lead to a reassessment of affirmative action plans and other race preferences in many communities and could well lead to a rash of lawsuits alleging reverse discrimination against cities."

The reality has been some-what more complex. Of the 234 MBE programs in existence when Croson was decided, not more than 40 have been litigated. Some programs have been modified to make them less vulnerable. Other programs are now based on disparity studies that have examined contracting procedures and results and argue that the programs are a necessary remedy to discrimination.

But another reason for the limited litigation is that, until Jacksonville, standing to sue has been uncertain. If standing is limited to the low bidder as some courts had held, that particular firm may not have the financial resources or the political security to begin a lawsuit. Further when litigation has been initiated, jurisdictions have often offered settlements to protect their programs.

Now after Jacksonville, litigation will more often be brought by associations or public interest law firms. These law suits will not only be better financed, but settlement will be less likely if these plaintiffs believe legal principles favorable to them will be created.

Moreover the impact of Croson, as the Nation's Cities article predicted, seems finally to be spreading to other areas besides MBE programs. So far there are at least 30 reported cases, largely in the personnel area, in which Croson has become the test for affirmative action programs. In May, the 4th Circuit ruled in Maryland Troopers Association v. Evans that goals set for each rank for black state police officers were not justified.

The court stated that "bare statistical comparisons constitute a treacherous rationale for the installation of race preferences."A 1992 district court decision, Quirin v. City of Pittsburgh, overturned a program the city created which required that 30 percent of its firelighters be women. The court held that the selection process for choosing firelighters was objective and the city had no investigation or study showing discrimination still existed.

Perhaps one result of these new cases is that all affirmative action programs will require the development of something like the disparity studies now so common in the MBE field.

That is an expensive and uncertain enterprise, since the judiciary has not yet established clear requirements for a defensible disparity study, but it may be the better alternative than trying to continue a racial or gender classification without proof of discrimination. At least it is clear that the Jacksonville case has opened the doors wider to challenges of such programs.

Dr. La Noue is Director of the Policy Sciences Graduate Program at the University of Maryland, Baltimore and author of the Local Officials Guide "Minority Business Programs and Disparity Studies" published by the National League of Cities in 1991.
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Title Annotation:Associated General Contractors vs. the City of Jacksonville, Florida
Author:La Noue, George R.
Publication:Nation's Cities Weekly
Date:Jul 12, 1993
Words:794
Previous Article:NLC's 1993 City Fiscal Survey: executive summary.
Next Article:$166 million released for summer jobs.
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