History Is Proof Enough of U.S. Discrimination : Minority Contract Goals Implement a Moral Right, Not Just a Constitutional One

On the day of Salvador Dali’s death, the U.S. Supreme Court issued a surreal opinion jeopardizing minority set-aside programs. As a black woman, I am incensed by the Supreme Court’s decision invalidating minority set-asides on construction contracts awarded by the city of Richmond, Va. When it comes to civil rights, nothing in this country can ever be regarded as settled, with the possible exception of slavery. “Nothing comes easy,” the song says. Not only does nothing come easy in the area of civil rights, but clearly we will have to continue to fight the same battles for years to come.

As a lawyer, it is my view that the majority opinion written by Justice Sandra Day O’Connor was fatally flawed by her notion that blacks, women and other minorities must prove that they are the victims of discrimination, historical realities notwithstanding. O’Connor complained that statistical disparities fell short of proving specific acts of discrimination. She complained that an “amorphous claim that there has been discrimination in a particular industry cannot justify the use of an unyielding racial quota.”

Yet there is nothing amorphous about a city with a history that includes a black population of 50% being awarded less than 1% of city contracts. There is no reason for the court to assume that these statistical disparities are due to chance as opposed to discrimination. The Richmond statistics cried out for a local government program that cracked the barriers preventing women and minorities from effectively competing for the city’s public contract dollars. Richmond’s city contract system rewarded the ruling class--white male business people who have banking relationships, lines of credit and the advantage of already being part of the established order.

Civil rights in this country for the rest of the century are going to be about economic development opportunities. The ability of blacks, women and other minorities to continue to gain access to public business on the federal, state and local levels is essential. In the few years of affirmative action that we have had, this access has provided real opportunity for those who have not been able to develop their businesses and careers in the way that the majority has. That this opportunity has been withheld from these groups until the last few years is a fact of life, the custom of the country, and does not require any more proof. No legal exercise in statistics is needed, no lofty constitutional reading is required. The historical pattern that has excluded vast segments of our society from equal opportunity is a moral outrage that demands correction. Without preferences, goals, set-asides, whatever you want to call them, public business and dollars will continue to be distributed in disgracefully large percentages to those who have already had access to business opportunities.

I came to understand the importance of economic equality when, as an attorney for the NAACP in Los Angeles a few years ago, I helped design a program of civil-rights activities related to economic development aimed at bringing economic parity to minorities and women. We focused on various industries, but we also focused on the city of Los Angeles, and the city responded.

Los Angeles does not have a strict minority set-aside program, but each city department has goals for the awarding of its contracts to women and minorities each year. The Department of Water and Power, for example, has a goal of 18% of contracts being awarded to minorities each year. Mayor Tom Bradley has a proposal before the City Council for citywide goals to provide meaningful opportunities for women and minorities to participate in the city’s business. These programs exist precisely because blacks and minorities have been excluded from commerce for generation after generation. No amount of legalistic sophistry from the Supreme Court can change that fact, nor can O’Connor’s tortured logic change the fact that giving minorities a chance at equal participation is, simply, the right thing to do.

A program narrowly tailored to correct the present effects of past discrimination can still survive. Believers in affirmative action must hope that members of the Los Angeles City Council do not interpret the Supreme Court decision as requiring a retreat from their commitment. The court has done more than enough retreating, and it remains for our political leadership to advance the cause of equality at least as vigorously as the court has diminished it. After all, we can not create a “kinder and gentler” nation or city with Supreme Court decisions that undermine affirmative action or ignore obvious economic disparities.