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The refusal of a federal judge in Chicago to uphold a Cook County ordinance encouraging the awarding of construction contracts to minority- and women-owned businesses is the latest in a series of decisions in which such laws have been found to be unconstitutional. The county’s ordinance was passed to remedy the perceived discrimination in hiring of women- and minority-owned businesses in public construction projects. But District Senior Judge John Grady, in an 84-page opinion released last Thursday, found no systemic lack of opportunity for minority- and women-owned businesses to bid on the county’s projects and that there was no proof of general contractors engaging in a pattern of refusing to hire those businesses. Builders Association of Greater Chicago, et al. v. Cook County, No. 96C1121. “Not receiving an invitation to bid is not the same thing as being denied the opportunity to bid,” Grady wrote. “There are thousands of subcontractors which might want to bid on any particular project, and certainly the general contractor cannot be expected to send invitations to all of them. There are various ways, however, that subcontractors can find out about projects and decide whether they are interested in bidding.” In addition, Grady found that the county’s ordinance provided no justification for setting aside 30 percent of construction contracts for minority businesses and 10 percent of contracts for women-owned businesses. “Therefore, even if the ordinance survived the necessary judicial scrutiny in terms of proof of discrimination, it would still be unconstitutional because it is overly broad,” Grady said. Earl L. Neal, of Chicago’s Earl L. Neal & Associates, an attorney hired to represent the county, declined to comment on the decision. But Jack Beary, spokesman for Cook County President John Stroger, said that county officials and its attorneys would review the order and decide the county’s next step. “President Stroger is disappointed in the ruling,” Beary added. “The ordinance was crafted to insure that minority- and women-owned businesses had a share of the business in Cook County in a manner that was fair just and equitable.” Meanwhile, City of Chicago officials insisted they are not concerned that a pending lawsuit challenging its set-aside ordinance will also fall. In 1996, the Builders Association of Greater Chicago filed separate federal lawsuits against the city of Chicago and Cook County alleging that their respective ordinances were unconstitutional because the requirements in dividing public construction money discriminated based on the basis of race, gender and ethnicity. Timothy Conway, of Chicago’s Conway & Mrowiec, and Joel J. Rhiner, of Stein, Ray & Harris, also of Chicago, represented the builders group in both lawsuits. PREVIOUS CHALLENGES In recent years, there have been lawsuits challenging and court decisions striking down similar minority quota laws. In April 1999, a federal judge struck down a set-aside law in Columbus, Ohio, although that state’s supreme court had found the Minority Business Enterprise Program, enacted in 1980, to be unconstitutional. That same year, a federal lawsuit was filed in Atlanta by white-owned companies against that city’s equal opportunity business program awarding up to 34 percent of city contracts to minority- and women-owned firms, and in Baltimore a federal judge ordered that city’s set-aside law to not be enforced because it violated the equal protection clause of the 14th Amendment. Earlier this year, a school district in Memphis settled a lawsuit filed by white contractors challenging the district’s policy of setting aside business for minority- and women-owned businesses. Set-aside laws have also been found to be unconstitutional in Dade County/Miami, Philadelphia and the city and county of Denver. But, above all those decisions, is that of City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989), in which the U.S. Supreme Court ruling set out what a government body needed to show in order to have a legal set-aside ordinance. In his opinion, Grady spent eight pages going over the Croson case and found that the county had not made a showing that there was a compelling interest to create a quota system. “Instead, it is the plaintiff that has presented the persuasive evidence,” the jurist concluded. “It has proved that there is no compelling governmental interest that justifies the minority set-asides and no important governmental interest that justifies the set-asides for women.” CASE AGAINST THE CITY The second case, Builders Association of Greater Chicago, et al. v. City of Chicago, No. 96C1122 remains pending in the discovery stage before U.S. District Senior Judge James Moran. The city does not believe Grady’s decision will affect Chicago’s ordinance because his ruling was based on how the county created and implemented its ordinance,” said Jennifer Hoyle, spokeswoman for the city’s law department. “The city’s was implemented in a different way and our percentages are lower,” Hoyle said. The city’s ordinance calls for 25 percent of contracts to be given to minority businesses and five percent to women-owned businesses, Hoyle said. Those numbers were decided upon after a three-member panel did a study in 1989 of discrimination against those businesses in the private sector, she added. “We feel comfortable those were numbers we could justify legally,” Hoyle said. “Our understanding is the county did not have that kind of research to back up their ordinance.” The Corporation Counsel’s office and attorneys with Shefsky, Froelich & Devine represent the city in that case.

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