| Cook County,
Illinois includes the City of Chicago, but up until recently both entities maintained
separate racial set-aside programs. In response to the
Builders Association lawsuit, Cook County's program was struck down outright by District
Judge John F. Grady on Nov. 2, 2000. Grady's decision was subsequently upheld on
appeal by appellate Judge Richard A. Posner on July 6, 2001.
The details of the Cook County lawsuit and the Chicago
lawsuit appear below. |
Chicago
Quotas Story Index:
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Cook County thus no longer has a discriminatory, unfair racial quota program for county
contractors.
| However, the City
of Chicago's discriminatory racial quota program remains in full force and effect
until at least June 2004 due to District Judge James B. Moran's 12/29/03 ruling.
Judge Moran stated in part that the City's program was "not narrowly tailored and
could not pass consitutional scrutiny as constituted" but which quota program
nonetheless might survive at a later time if the City is able to revise the program
sufficiently to pass "constitutional muster". |
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A. THE COOK COUNTY LAWSUIT
In November 2000 (Northern District of Illinois, Eastern Division, No. 96 C 1121) U.S.
District Court Judge John F. Grady suspended Cook County's minority set-aside
program.
| Judge Grady ruled
that the County had failed to prove that systemic discrimination pervaded the area's
construction industry and therefore Cook County failed to justify its racial set-aside law
which reserved 30 percent of county contracts for minority-owned and woman-owned
companies. |
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On May 10, 2001 Cook County appealed Judge Grady's decision to the United States Court of
Appeals for the Seventh Circuit.
On July 6, 2001 the 7th Circuit Court affirmed (upheld) Judge Grady's decision (denied the
County's appeal). Thus, Cook County's racial quotas remain suspended today.
Appeals Court Judge Richard A. Posner's opinion upholding District Judge Grady's decision
(suspending Cook County's quota program) makes for very interesting reading. See
below.
In the United States Court of Appeals
For the Seventh Circuit
Builders Association of Greater Chicago, |
Plaintiff-Appellee, |
v. |
County of Cook, |
Defendant-Appellant, |
and |
Association of Asian Construction Enterprises,
et al., |
Intervening-Defendants-Appellants. |
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Nos. 00-4161 and 00-4175 |
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Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 96 C
1121--John F. Grady, Judge.
Argued May
10, 2001--Decided July 6, 2001
Selected Excerpts of
the Court of Appeals Decision:
"After a bench trial, the district court ruled that the program was unconstitutional,
123 F.Supp. 2d 1087 (N.D. Ill. 2000), and the County appeals."
Judge Posner, writing for the majority of the three judge appeals panel, noted in this
opinion "There is, to begin with, no credible evidence that Cook County in the award
of construction contracts ever intentionally (or for that matter unintentionally)
discriminated against any of the groups favored by the program."
"As the district court noted, moreover, the County "conceded that [it] had no
specific evidence of pre-enactment discrimination to support the ordinance." ... A
public agency must have a strong evidentiary basis for thinking a discriminatory remedy
[Cook County's quota program] appropriate before it adopts the remedy."
"Nor is there any basis for attributing to the County any discrimination that prime
contractors may have engaged in. ... And if the County had been complicit in
discrimination by prime contractors, still it would be odd to try to remedy that
discrimination by requiring discrimination in favor of minority stockholders [owners], as
distinct from [minority] employees [of white-owned contractors].
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"That is a standard feature of minority set-aside programs, but a puzzling one in
terms of the stated objectives of such programs." [For example, one white-owned
Chicago contractor whose employees are 60% minority complained that it is excluded from
the quota programs. Editor]
"Even if the record made a case for remedial action of the general sort found in the
ordinance, it would flunk the constitutional test by not being carefully designed to
achieve the ostensible remedial aim and no more. ... |
Chicago
Quotas Story Index:
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"... The County's laundry list of favored minorities includes two groups - - persons
whose ancestors came to the United States from Spain or Portugal - - that common sense
(not contradicted by any evidence) instructs have never been subject to significant
discrimination by Cook County."
"So the ordinance is overinclusive. Nor has the County made any effort to show that,
were it not for a history of discrimination, minorities would have 30 percent, and women
10 percent, of County construction contracts."
DOWNLOAD the Appeal Court's 7/6/01
Order
(plain text format)
SeventhCircuit_07-06-01.txt |
B. THE CHICAGO LAWSUIT
SUMMARY: "In February
1996, the Builders Association of Greater Chicago sued the city in federal court, claiming
the association contractors have been denied bids, even when they came in with the lowest
price, because of the [quota] requirement, and that Chicago "has encouraged and
perpetuated racial-, ethnic- and gender-based discrimination against non-minority owned
entities in the award and performance of its contracts through its ordinances, policies,
procedures and requirements . . . "
"The [builders] association also asserts that its members have lost profits by being
forced to enter into joint venture agreements with minority subcontractors when they could
have done the work themselves and that the city never identified any past discrimination
by itself or private industry against minority-owned or women-owned businesses."
Excerpted from Northwestern University Medill
News Service archives.
Last known link:
http://xavier.cs.northwestern.edu:8000/article.asp?articleID=6699&item=archives
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
BUILDERS
ASSOCIATION OF GREATER
CHICAGO, |
Plaintiff |
vs. |
| CITY OF
CHICAGO, a municipal corporation, |
Defendant |
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No. 96 C 1122 |
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MEMORANDUM OPINION AND ORDER
Selected News and
Excerpts:
Judge James B. Moran's 12/29/03 Opinion and Order
"CHICAGO, Dec. 30 (UPI) - A federal judge ruled Chicago's 14-year-old set-aside law
to remedy discrimination against minority- and women-owned businesses in the construction
industry is flawed and gave the city six months to make changes.
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"Minorities and women received $619 million in city contracts last year -- about 41
percent of all city business -- far exceeding minimum requirements of a 1989 set-aside
ordinance which reserved 25 percent of city contracts worth more than $10,000 for
minority-owned businesses and 5 percent for women-owned businesses.
"The judge said set-asides were needed to remedy ongoing discrimination, but his
ruling noted that healthy, well-established minority- and woman-owned firms were eligible
for set-aside contracts under the current program. |
Chicago
Quotas Story Index:
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"Moran said the city should take into account a business owner's net worth and lower
the annual amount a minority- or female-owned firm can make to qualify for the set-aside
program from $27.5 million to $17 million. "Remedies must be more akin to a
laser beam than a baseball bat," Moran wrote.
From the UPI story, as printed in the
Washington Times 12/31/03.
Last known link to the Washington Times article:
http://www.washtimes.com/upi-breaking/20031230-010539-6604r.htm
"... Chicago's set-aside program, as it is known, has been called into question after
a federal judge ruled last week that the program is illegal because, among other things,
it amounts to a quota system.
"The judge, James B. Moran, stayed his order for six months, meaning that the program
can remain in effect until early summer while city officials work on amending it. The
ruling marks another blow to government set-aside programs designed to aid minority- and
women-owned firms that have suffered numerous setbacks as courts question the programs'
constitutionality."
From the Boston Globe story 1/4/04.
Last known link to the Globe story:
http://www.boston.com/news/nation/articles/2004/01/04/chicago_initiative_nears_a_conclusion/
"In December, a federal judge gave the city of Chicago six months to make changes in
the law aimed at curbing discrimination by the construction industry against minority- and
women-owned businesses.
"But Judge James Moran refused to strike down the law -- as urged by the Builders
Association of Greater Chicago -- because he said it is needed to remedy past and ongoing
discrimination. "The city has a compelling interest in not having its
construction projects slip back to near-monopoly domination by white firms," Moran
said.
"Moran said the city "has been too aggressive in denying waivers" to
contractors who are unable to find qualified subcontractors.
"He also said the amount a minority- or woman-owned company makes in a year that
indicates it no longer needs assistance is set too high. He recommended lowering it
from the present $27.5 million to $17 million a year.
"Moran gave the city six months to make those and other changes. He could terminate
the program if it is not modified to his satisfaction."
Excerpted from the Gary Wisby
story in the Chicago Sun-Times Jan. 9, 2004
Last known link to the complete story (cached):
http://www.hispanicbusiness.com/news/newsbyid.asp?fpa=0&id=14301
"Moran wrote in his opinion that the city "has a compelling interest in not
having its construction projects slip back to near-monopoly domination by white male
firms," but he said Chicago's set-aside program is "more expansive and more
rigid" than municipal set-aside plans that have passed legal muster elsewhere.
It has no termination date and does not consider a minority business owner's wealth to
determine if he or she should be certified for the set-aside program, Moran pointed
out. Companies owned by women and minorities can have annual sales as high as $27.5
million annually and still qualify for the program, he said."
From the Chicago Tribune 1/6/04
Last known link to the Tribune story:
http://www.chicagotribune.com/news/local/
chi-0401060223jan06,1,5202346.story?coll=chi-news-hed
DOWNLOAD District Judge James B.
Moran's 12/29/03 Opinion
(Adobe Acrobat format - 931 KB)
District_Order_Moran_12-29-03.pdf |
END: 3. Lawsuits against Chicago and Cook County
racial quotas |
