A case for maintaining race-conscious disadvantaged business programs
Published on 01/27/2009
In a year when the two leading candidates in the Democratic presidential primary race are a woman and a black man, we are reminded of how far the United States has come in terms of racial and gender equality in America. Half a century ago, before the upheavals and civil rights legislation of the 1960s, the notion that anyone other than a white male could be President was far removed from the realm of possibility for the average citizen. The legal precedents emanating from that revolutionary era promoted and ensured the rights of socially and economically disadvantaged individuals that remain in effect today - yet within the sphere of federal and state contracting the ideals embodied in those laws are being abandoned in the name of expediency and profitability.
Increasingly, government agencies involved in the federal and state procurement markets are opting to implement race-neutral measures, which do not guarantee minority and women businesses participation on state and federally-funded contracts, over race-conscious programs that require participation from these disadvantaged groups on projects. While hybrid race-conscious/race-neutral programs, which are implemented in a majority of states, are undoubtedly beneficial to disadvantaged businesses, the states of Florida, New Hampshire, and Rhode Island have unilaterally abandoned the race-conscious component of their federally-funded Disadvantaged Business Enterprise (DBE) programs.
The exclusion of race-conscious components in disadvantaged business programs is, essentially, a signal that a state believes that discrimination no longer exists - an implication that the vast majority of minorities and women would refute. In fact, studies commissioned by many states have found that significant disparity exists between the expected minority and women-owned business participation on state contracts and their actual utilization on contracts. Also, the significant decrease in disadvantaged business participation after the suspension of race-conscious programs is evidence of such a program's necessity. When the City of San Diego implemented a solely race-neutral socially and economically disadvantaged business program, for example, minority and women-owned business participation dropped from 20 percent to less than 4 percent.
According to a report released by the non-profit Insight Center for Community and Economic Development (Insight CCED), government entities charged with managing procurement have been forced to water-down their affirmative actions programs as a result of legal action contractors have taken against the programs.
"As a result [of the court decisions], a number of changes have taken place in the DBE and similar programs - they must be narrowly tailored; must attempt to level the playing field rather than maximizing DBE procurement; must have limited duration and scope; provide good faith efforts waiver provisions; and have race- and gender-neutral components," the report says.
The decisions handed down after these legal challenges, however, do not argue the nonexistent of discrimination towards certain minority groups and women. Rather, they urge states to commission independent studies to justify their continued use of race-conscious goals - tacitly implying that the courts accept the evidence that discrimination is still prevalent in our society. Yet, state agencies and departments are increasingly emphasizing the supposed value of race-neutral programs.
True disadvantaged business programs in the federal and state contracting market are being swept away only to be replaced by race-neutral half-measures. While race-conscious and race-neutral measures are effective when applied in tandem, programs that are solely or predominately race-neutral cannot guarantee equality in the procurement market. Of course, race-neutrality is the end goal but, despite our efforts, the United States still suffers from the ill effects of discrimination. The time for the extensive use of race-neutrality in our disadvantaged business programs is not the present; in the government procurement market, race-conscious measures are essential to ensure that minorities and women can secure their unalienable rights of Life, Liberty, and the pursuit of Happiness.
