California Supreme Court debates ban on affirmative action in contracts

The Los Angeles Times
The high court, reviewing a San Francisco ordinance that gives firms owned by women and minorities an advantage in contracting, considers easing the scope of Proposition 209, which was passed in 1996.
By Maura Dolan, Los Angeles Times
May 6, 2010
Reporting from San Francisco

The California Supreme Court debated the constitutionality of Proposition 209 on Tuesday, questioning whether the reach of the 1996 ban on affirmative action in government should be limited.During a hearing Tuesday, some members of the state high court appeared inclined to permit some type of affirmative action when needed to address deliberate and ongoing discrimination.The court is reviewing a San Francisco ordinance that gives firms owned by women and minorities an advantage in city contracting. Although the U.S. 9th Circuit Court of Appeal upheld the constitutionality of Proposition 209 in 1997, the state high court is not bound by the circuit ruling.

Full Story: http://www.latimes.com/news/custom/topofthetimes/topstories/la-me-prop209-20100506,0,6401791.story

City unveils post-affirmative action contracting program

Omaha.com
BY MATTHEW HANSEN
WORLD-HERALD STAFF WRITER
Published Friday
March 13, 2009

A change sparked by Nebraska's affirmative action ban will transform the way Omaha companies receive slices of the city contracting pie.The Small Emerging Business Program, unveiled Friday by Mayor Mike Fahey, will greatly expand the number of businesses that qualify for special government subcontracts to do things like build libraries, repair fire stations and clean community centers.But it's unclear how the new program will affect minority- and female-owned businesses as well as extremely small companies.Those groups benefited from two now-defunct contracting programs — one that shuttled work to companies owned by minorities and women and another that sent work to tiny subcontractors.The previous programs became unconstitutional when Nebraska voters passed the affirmative action ban in November.Fahey called the affirmative action ban "unfortunate" but said the new Small Emerging Business Program was one that could help small businessmen and businesswomen of any color."We're opening the door for many more small businesses," Fahey said.

Full Story: http://omaha.com/index.php?u_page=1208&u_sid=10585766

Women dispute legal basis for narrow set-asides

East Bay Business Times
January 28, 2008

Kent Hoover Washington Bureau Chief
Legal experts challenged the Bush administration's narrow approach to federal contracting set-asides for women-owned businesses, contending it has no basis in law and would doom the program to failure.
Seven years after Congress enacted the program, the Small Business Administration proposed regulations that would limit the set-asides to four industries: national security and international affairs; coating, engraving, heat treating and allied activities; household and institutional furniture, and kitchen cabinet manufacturing; and a limited set of motor vehicle dealers.
Under the proposed rule, each federal agency also would have to find evidence that it had discriminated against women-owned businesses in these industries before it could set any aside contracts.
The SBA and the Department of Justice contend the program must be narrowly targeted to stand up to legal scrutiny.
"Mere findings of disparity or underrepresentation are generally not sufficient to establish the constitutionality of a gender-based preference program," Elizabeth Papez, deputy assistant attorney general, testified at a Jan. 16 House Small Business Committee hearing. "Courts are likely to strike down such programs if the government cannot show genuine and non-hypothetical evidence of discrimination in the economic sphere in which the program will operate."
But Jennifer Brown, vice president and legal director for Legal Momentum, said the proposed rule's standard "comes out of nowhere." There are no court decisions that call for individual agencies to make these findings, much less admit they were guilty of discrimination, Brown said.
Legal Momentum is a New York City-based legal advocacy organization for women.
"It is frankly impossible to imagine any federal agency making a formal determination that it had engaged in sex discrimination in awarding government contracts," Brown said.
This would not only "embarrass the agency but presumably open it to litigation by past disappointed contractors," she said.
"I can only imagine the rush to the courthouse the next day." [To read the entire article, go to: http://eastbay.bizjournals.com/extraedge/washingtonbureau/archive/2008/01/28/bureau2.html?market=eastbay]

Women's group requests hearing on SBA program

Government Executive
By Elizabeth Newell enewell@govexec.com October 12, 2007

Women's Chamber of Commerce is pushing for a court hearing on the status of the Small Business Administration's women's procurement program, a week after the agency announced it was circulating its latest proposal to implement the program.
The Women's Chamber filed the request for a status hearing at the U.S. District Court for the District of Columbia on Thursday. The group asked the court to address the "unconscionable delay" in implementing the program, mandated by Congress seven years ago to help agencies reach a goal of giving 5 percent of contracting dollars to women-owned small businesses.
The SBA announced last week that it had submitted its latest draft regulations on the program for interagency review. The regulatory changes are necessary before implementation can begin, agency officials said.
The legal document filed by the Women's Chamber, however, calls the rule an unnecessary reversal, saying the Office of Management and Budget was wrapping up final review on the previous rule for the program. The new rule has not yet been released to the public.
The court has addressed delays in the program previously. In November 2005, it found that the agency had "sabotaged, whether intentional[ly] or not, the implementation of a procurement program which would have, and will, likely benefit the businesses they represent." The court directed the agency to propose a deadline and follow a schedule to implement the program as soon as possible.
The SBA has not met its own deadlines, including a regulatory review deadline of November 2006. SBA Administrator Steve Preston testified before the House Small Business Committee on Oct. 4 that the agency was doing everything it could to enact the plan quickly.
"I agree that it is taking a long time, and it's taking too long, and it's taking longer certainly than we expected it would," Preston said at the hearing.
The SBA says it is required by law to submit the rule for interagency review before releasing it for public comment, but Margot Dorfman, chief executive officer at the Women's Chamber, said the review process was supposed to take place months ago. The organization repeatedly has accused the SBA of deliberately impeding the program through excessive regulatory review.
"The SBA has flouted Congress's directives and blatantly ignored self-imposed deadlines responsive to the court's order," the Women's Chamber charged. "The SBA's glacial progress -- if it can be considered progress at all -- is clearly violative of the [Administrative Procedures Act] prohibition against unreasonable delay."
An agency spokeswoman said the SBA does not object to the status hearing. The court has not yet responded to the hearing request.
Rep. Nydia Velázquez, D-N.Y., chairwoman of the Small Business Committee, said she plans to look into legislation to compel the agency to act. The Women's Chamber is hoping that, meanwhile, the court will look into SBA's withdrawal of the earlier rule, evaluate the agency's progress and take any other necessary steps to move the program forward.
http://www.govexec.com/story_page.cfm?articleid=38281&dcn=e_gvet