BY MICHAEL HAWTHORNE
The Cincinnati Enquirer
COLUMBUS - Gov. George Voinovich's administration is scrapping minority set-asides for state contracts, even though state lawyers are appealing judicial decisions that struck down the multimillion-dollar program.
In a memo sent this week to state agency directors, Mr. Voinovich's chief legal counsel said two recent federal court decisions render the law "unenforceable."
The memo also reminded departments that an executive order urges them to award 10 percent of their contracts to minority firms. But unlike the set-aside program, the order only establishes goals and is not required to be followed as a matter of law.
"(D)ue to the recent court decisions in federal court, the (set-aside) program is unenforceable and should not be incorporated into any state contracts," Maria Armstrong, Mr. Voinovich's director of legal affairs, wrote in the memo.
The governor's decision goes beyond an Oct. 29 ruling by U.S. District Judge James L. Graham, who declared unconstitutional an 18-year-old state law that set aside a percentage of state construction contracts for minority firms.
Judge Graham's decision left intact another portion of the law that ensured minority firms are awarded state contracts for goods and services.
The loss of both programs is significant, prompting some minority contractors to fear they may be shut out of government projects. Minority firms collected $37 million last year through the state's Minority Business Enterprise program - $19.7 million for goods and services and $17.3 million for construction projects. Black lawmakers reacted angrily to the decision, noting that Mr. Voinovich has long expressed support for affirmative action programs. "This doesn't sound very supportive," said Rep. Mark Mallory, a Cincinnati Democrat and vice president of the Legislative Black Caucus. "I want him to fight for the program."
Mr. Voinovich's decision is the latest blow to the set-aside program.
In addition to Judge Graham's ruling, a case involving set-asides for goods and services is pending before the Ohio Supreme Court. Moreover, a federal magistrate ruled last month that Cuyahoga Community College's minority set-aside program is unconstitutional. That ruling further stated that college trustees could be personally liable for implementing the program.
State lawyers think the case could end up making state department heads liable as well.
Underlying the legal issues are the racially charged politics of winners and losers in the competition for lucrative state contracts. Groups representing minorities say set-asides are needed to correct a history of discrimination in state contracting. But opponents, including white-owned companies that don't qualify, argue that the state has failed to prove the program is still necessary. Four specific minority groups - African-Americans, Hispanics, American Indians and Orientals (the state designation for persons from the Far East) - were eligible for the set-aside program.
Like Mr. Voinovich, governor-elect Bob Taft advocates replacing the race-based program with one open to any "economically disadvantaged" person or group.
But Mr. Taft also wants the state to defend the race-based program in court. And he has vowed to veto any attempt by the General Assembly to dismantle other affirmative action programs.
