The Californians for Equal Rights Foundation (CFER), along with co-plaintiffs represented by Pacific Legal Foundation (PLF), filed a lawsuit against Alameda County on Monday, challenging two public contracting programs that impose race-based preferences for minority-owned companies.
For decades, the U.S. Supreme Court has ruled against using racial quotas in the awarding of governmental contracts, such as in the 1989 landmark City of Richmond v. J.A. Cronson case, or in the 1996 Adarand Constructors v. Federico Pena decision. Both of those times, the justices found that the equal protection clause of the 14th amendment had been broken. The Office of Federal Contract Compliance Programs (OFCCP) has even said that such programs are not permitted.
However, since these rulings, many cities and counties have found work-arounds to try to impose racial quotas in governmental contracts. In Alameda County, instead of imposing one of these “set-aside” programs, they went for a different name. Specifically, the Alameda County Public Works Agency implemented the “Construction Compliance Program,” with the General Services Agency overseeing the “Enhanced Construction Outreach Program.”
Both programs have “participation goals” for minority-owned businesses for county construction projects, essentially being a racial quota in all but name. These programs have been found to discriminate against subcontractors by excluding those not minority-owned from being considered for a job because the “participation goal” needing to be met.
As a result, the CFER and PLF filed Californians for Equal Rights Foundation v. Alameda County in the Superior Court of California in Alameda County on Monday.
“Racial quotas in public contracting, just as racial quotas elsewhere, are wrong and unconstitutional,” said PLF senior attorney Wen Fa in a statement on Monday. “The government should not be depriving opportunities for small businesses engaged in public contracting — and the Alameda County public contracting programs are particularly pernicious because they deprive opportunities based on race.”
Like similar prior cases, the CFER/PLF case is challenging the County based on the equal protection clause of the 14th amendment, as well as California’s Constitutional ban on racial preferences, which was recently upheld by voters in 2020 through Prop 16’s failure.
“California’s voters sent a strong message that they are serious about protecting the time-honored right of equality before the law, in 1996 when they approved Proposition 209, and again in 2020 when they defeated its repeal,” added CFER executive Vice President Gail Heriot. “Government favors on racial grounds have a pernicious past and do not belong in the 21st century.”
While many have also rushed to defend the case, affected construction company owners, including many who would benefit from racial quotas, noted that they have been more negative for the County and state.
“Minority-owned company set-asides and quotas have proven to be more harmful than good,” said Andrew Salazar, a mixed-race Construction company planner in Los Angeles, to the Globe on Monday. “These set-asides really do help many minority-owned businesses stay afloat by giving them a part of, say, a construction or renovation job. However, besides being constitutionally illegal, many have been associated with fraud, and taxpayers sometimes have to pay for a more expensive option. Rather than go with quality or the lowest-bidder, they go with a minority-owned firm.”
“And, here, especially in California, a lot of places see regular use of minority-owned companies because they are good and are not expensive. But a quota system muddles that up and quality can go down and cost goes up as a result. A lot of people also conveniently forget that any firm always hires a wide range of people, with many actually having a majority of Latino workers, so people of all races are getting work out of a normal and fair awarding of a contract. Things just become unfair when the quotas are put in place.”
“I’ve seen these companies with systems like these both in place and not in place. Every time, quality and cost win out. Being minority-owned should have nothing to do with it. We should just be thinking if they can do a good job, can offer a good budget, can get the job done on time, and other factors like that. Ownership of the company means nothing.”
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