D.C. Law Aiding Minority Contractors Voided

A federal judge has struck down the District of Columbia’s minority contracting law as unconstitutional, saying the city cannot rely on general allegations of discrimination to defend setting aside about a third of all its contracts for minority-owned firms.

U.S. District Judge John Garrett Penn, following a pattern set in other recent court decisions on such programs, ruled that the District must provide statistical evidence of past discrimination to justify the contracting law.

The District government already was scrambling to do a study to prove past discrimination against minority firms because of an earlier, narrower appeals court ruling in the same case.

At stake in the court battles are hundreds of millions of dollars in city construction and service contracts.

“This is another victory for us,” said Arnold O’Donnell, co-owner of O’Donnell Construction Co., which challenged the 15-year-old contracting law. “What this order says is that the whole contracting act is unconstitutional.”

City officials said they could not comment on Penn’s decision because they had not received a copy of the ruling.

Penn’s ruling comes seven months after a federal appeals court quashed a part of the District road construction program that set aside 35% of all projects for minority-owned firms and sent the case back to Penn. O’Donnell had sued the city, contending that the law prohibited him from bidding on city road construction projects.

The appeals court ruling was the first strike against the city’s minority contracting law since the Supreme Court ruled in a 1989 case (City of Richmond v. J. A. Croson Co.) that before setting aside contracts for minorities, local governments must prove they are remedying discrimination.

“Croson makes it clear that at a minimum, the District must have a ‘strong basis in evidence’ to support its racially based program,” Penn said in his 28-page decision. “The District cannot simply rely on broad expressions of purpose or general allegations of historical or societal racism.”

Although the appeals court focused specifically on the road construction projects about which O’Donnell was complaining, the three-judge panel made it clear last spring that Penn would likely find the entire law invalid.

In addition to striking down the general minority contracting law, Penn ruled that the D.C. Department of Public Work’s Disadvantaged Business Enterprise Program also is unconstitutional because the city has set aside too many contracts for minority firms.