Affirmative action rules struck down

Required use of companies owned by women, minorities is ruled unconstitutional

By Dan Luzadder
Denver Rocky Mountain News Staff Writer

03/08/00

Denver ordinances requiring contractors on city jobs to hire minority- and female-owned companies as subcontractors and suppliers are unconstitutional, a federal district judge ruled Tuesday.

Mayor Wellington Webb quickly said the ruling marked "a sad day for equal opportunity" in Denver.

The ruling came in a lawsuit filed eight years ago by Marc Lenart, who is white and owns Brighton-based Concrete Works of Colorado. The case went to trial last year.

Judge Richard Matsch upheld Lenart's claim that even though he was low bidder, the city wrongly denied him three contracts because he did not comply with city requirements to use minority and female subcontractors.

Matsch said rules forcing racial and gender quotas upon contractors as a condition of doing business with the city violate the equal-protection clause of the 14th Amendment.

Perry Pendley, an attorney for Mountain States Legal Foundation, which represented Lenart and his company, applauded the ruling.

"One result of this is that the city of Denver is now going to be able to go with the low bidder on construction projects," Pendley said.

The ruling comes as the city is proceeding construction projects for a new city office building, and improvements at the Denver Zoo, the Art Museum and the Colorado Convention Center.

At trial, attorneys for the city argued that Denver was attempting to mitigate racism in the state's banking and contracting industries, which they said have made it more difficult for minority-owned companies to get financing and to compete for contracts.

But Matsch ruled that although the city had demonstrated evidence of racial discrimination in the construction industry, it failed to prove that ordinances requiring minority participation were an effort to remedy racism or gender bias by the city itself.

"I'm disappointed by the ruling," Webb said. "While it is still being analyzed, this ruling could have a chilling effect on qualified women and minority firms competing on a fair and unbiased playing field ... for city construction contracts."

Webb said he wants to meet with the city's legal staff and give it more time to study Matsch's ruling before making a more detailed response today.

"The city has a clear responsibility to provide equal opportunity for all its citizens, and it is a responsibility and an inherent value that we take very, very seriously," Webb said. "We will continue to explore options that provide equal access to women- and minority-owned contracting firms."

Former City Attorney Dan Muse, who took a personal interest in the handling of the case and participated in its preparation, did not immediately return phone calls to his home for comment.

The city temporarily suspended its minority hiring quotas after a 1989 Supreme Court ruling striking down racial components in contracting by local governments.

But the city then spent more than $1.5 million on studies from consultants intended to show that Denver needed minority quotas to mitigate discriminatory practices by the city and the construction industry.

Michael Hancock of the Denver Urban League, said Thursday that he considered the ruling troubling, "because Denver has become something of a model for other cities in minority participation in contracting."

He said the city "made some mistakes" in minority participation during the building of the Colorado Convention Center and attempted to mitigate those by improving participation by minority contractors during the construction of Denver International Airport.

But Hancock said he remains optimistic about the ruling.

"Although I think it is unfortunate, it presents a tremendous opportunity for the city of Denver and its people to say, were going to do this (encourage minority participation) not because we have to, but because we want to," he said. "This is a value of this community, and I believe the city and contractors can work together voluntarily to accomplish this."

Contact Dan Luzadder at (303) 892-2600 or Luzadder@RockyMountainNews.com.

03/08/00