BY MICHAEL HAWTHORNE
Enquirer Columbus Bureau
COLUMBUS
- Despite Gov.-elect Bob Taft's opposition to race-based quotas, state lawyers plan to appeal a federal judge's ruling that struck down Ohio's minority set-aside law for state construction contracts.
The appeal, expected to be filed in the U.S. Court of Appeals for the 6th Circuit in Cincinnati by Friday, seeks to reverse a series of setbacks for affirmative action across the nation.
Like his predecessor, Gov. George Voinovich, Mr. Taft advocates replacing the race-based program with one open to any "economically disadvantaged" person or group.
At the same time, Mr. Taft wants the state to defend the race-based program in court. He also has vowed to veto any attempt by the General Assembly to dismantle other affirmative action programs.
"The state needs to seek a judgment at the appellate level so we know where we stand," said Brett Buerck, Mr. Taft's spokesman.
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$33 M RESERVED
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Ohio sets aside a percentage of state contracts for construction and goods and services for African-Americans, Hispanics, American Indians and Orientals - the state's designation for people from the Far East.
More than $33 million in contracts was reserved for minority-owned firms during the past two years, according to the state Department of Administrative Services.
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While the set-aside program is under attack in both state and federal courts, underlying the legal issues are the racially charged politics of winners and losers in the competition for lucrative state contracts.
Groups representing African-Americans say the law is needed to correct a history of discrimination in state contracting. But U.S. District Judge James L. Graham agreed with opponents, including white-owned companies that don't qualify, who argue that the state has failed to prove the program is still necessary.
In his Oct. 28 ruling, Judge Graham said, "The difficulty presented in this case, which can't be minimized, is the failure of the Ohio General Assembly to articulate either a finding of present or past discrimination or a purpose of remedying the effects of such discrimination."
The question posed by Judge Graham also is on the minds of the seven justices on the Ohio Supreme Court, who heard oral arguments Tuesday in a separate case challenging the set-aside law.
Judith French, an assistant attorney general, told the justices that the U.S. Supreme Court may ultimately judge Ohio's law if there are conflicting rulings from state and federal courts.
Under questioning by Justice Andy Douglas, Ms. French said the state may have to abolish the program to prove that discrimination still exists.
Whatever happens, the fate of the law will revolve around a 1989 decision by the U.S. Supreme Court that upheld preference programs if they were narrowly tailored to remedy a proven history of past discrimination.
Rep. Mark Mallory, a Cincinnati Democrat and vice chairman of the Legislative Black Caucus, said the state's lawyers should be able to meet the standard set by the nation's highest court.
"We feel the program is still . . . very necessary," Mr. Mallory said.
Although only four specific minority groups - African-Americans, Hispanics, American Indians and Orientals - are supposed to be eligible for the set-aside program, state officials have sometimes broadened the law's definitions to benefit other groups.
For instance, the case before the Ohio Supreme Court involves an American citizen from Lebanon whose Zanesville produce company was certified to participate in the set-aside program for five years.
Ritchey Produce Co. was granted certification through the program in 1990 as an Oriental-owned company, but the state rejected the firm's 1995 application because it did not meet the racial qualifications. Justice Paul Pfeifer questioned claims by the company's lawyers that it should qualify because the owner belongs to an "economically disadvantaged" group.
"It sounds like if you aren't making as much money as you would like, you're economically disadvantaged," Justice Pfeifer said. "You're defining this in a way that makes the entire statute meaningless."
In 1992, the Voinovich administration expanded the definition of "Orientals" in the law to include Asian Indians.
