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High Court Rejects City’s Minority Set-Aside Ruling On Philadelphia Law Latest Loss For Affirmative Action

Ending a closely watched, eight-year legal battle over affirmative action, the Supreme Court on Tuesday turned down Philadelphia’s plea to preserve a city law that set aside one-fourth of its public works spending for businesses owned by blacks or women.

The Philadelphia case has drawn attention as a test of whether minority set-aside programs can survive today, despite past court rulings calling them “highly suspect.” Rather than abandon the program, Philadelphia defended it in the courts.

The outcome, along with recent rulings striking down similar programs in Columbus, Ohio, and Miami, shows how minority set-aside programs are being slowly but steadily dismantled by court rulings.

“This is the end of the public works set-aside program here,” said attorney Jack Widman, who represented the coalition of white contractors that in 1989 sued Philadelphia.

During the 1980s, many city and county governments enacted “minority enterprise” laws to ensure small businesses owned by minorities or women would get a share of public contracting dollars.

Congress had taken the same approach in 1977 in a huge federal public works law that was later upheld by the Supreme Court.

But the tide turned against these set-aside programs on Jan. 22, 1989, when the justices struck down a Richmond, Va., law that reserved 30 percent of contracting dollars for minority companies.

In that case, Justice Sandra Day O’Connor said discrimination against whites by city and state officials would hereafter be held to the same strict standard as discrimination against blacks.

While many experts pronounced the 1989 ruling in Richmond vs. Croson to be the death knell for minority contracting laws, many big city officials refused to give up. Their lawyers seized on a passage of O’Connor’s opinion that left the door ajar. If city officials had “evidence that nonminority contractors were systematically excluding minority businesses from subcontracting opportunities,” they could take steps to end this “discriminatory exclusion.”

Seeking to prove discrimination through statistics, many cities paid consultants to conduct so-called “Croson studies” to defend their set-aside programs.

However, while many cities have invested hundreds of thousands of dollars in such studies, their results have often not held up in court.