Court's Jacksonville Decision Opens Affirmative Action Plans to Increased Litigation

Article excerpt

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. …