There has been a flurry of bills introduced in the last two months to address the need for increased participation of minority and women businesses in the government contracting process. Some of these are discussed in this issue’s Eye on Washington (page 34). Others have since dropped onto our radar. You can read about those in the In Brief section of our newly-redesigned website, www.mbemag.com. MBE magazine will be keeping a close eye on the U.S. Supreme Court’s decision to revisit affirmative action in college admissions. Although this is about college admission, it could well affect other areas of affirmative action.
I want to discuss the long-lasting effects of California’s, now infamous, Proposition 209 (also known as the “anti-affirmative action” bill) adopted by California voters in November 1996 through the initiative process, adding a new Section 31 to Article 1 of the California Constitution. Similar initiatives where passed in Washington, Michigan, and Nebraska.
We have spoken about this many times since its passage but it has been 16 years and very little has been said about its true effects. Why? Because even to gather the data that would begin to address the question, could be considered illegal. In 1998, then-Governor Wilson ordered all California agencies to cease collecting data on the amount of public procurement contracts awarded to minority- and women-owned businesses. State agencies have since stopped producing this information in any meaningful form. Without these statistics, how-then can we know that publicly-funded contracts are equally disbursed?
I recently attended a webinar titled “Public Contracting in the Proposition 209 era,” presented by the Insight Center for Community Economic Development. The webinar discussed the legal background and cases that lead to the conclusions of what is permissible under Proposition 209, what might be permissible, and what is usually not permissible. These guidelines were presented in the Center’s research released in January 2012, www.insightcced.org/uploads/assets/Contracting%20in%20the%20209%Era.pdf.
We encourage you to read it. It’s not a silver bullet, but there are several recommendations stated in this comprehensive report, made even more enlightening once we heard from the co-authors, that suggests there is hope for minorities and women in business who pursue public contracting opportunities in these states. As the report cautions, “this brief sets forth a great number of possible measures that comply with Proposition 209, the only method actually proven to advance the ends described above is a program of enforceable minority and women business enterprise (MWBE) contracting goals—precisely the approach that is generally prohibited by Proposition 209, according to the California Supreme Court. The permissible approaches described in this brief are promising, and with aggressive and creative implementation many prove helpful in assuring fairness in public contracting and addressing the barriers faced by MWBEs—but they should not be taken as a substitute for the more direct affirmative action measures that Proposition 209 generally prohibits.”
The key words to note are “aggressive and creative implementation.” Not easy to do, I know, when you are hamstringed by a law with very little wiggle-room. Still, we must try, and in trying, we will succeed.
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