Race-Conscious Economic Justice

There has been a debate for decades about race-conscious public policy and its legality. Many refer to it as the “affirmative action” debate, the debate over “quotas”, or even the “reparations” debate.

In the City of Philadelphia, maybe the debate should have been put to rest when Mayor Jim Kenney signed an executive order in January 2020 calling for a “Racial Equity Strategy” mandating racial equity assessments and plans for each City department. The City Law Department should probably go first. Although the City Solicitor is an African American man, the department is far from diverse and there are some entrenched interests within the department that are still advocating for race-neutral policymaking over race-conscious policymaking. They clearly did not get the memo from the Mayor or filed it in the wastebasket.

The most race-conscious public policy to bear fruit has been the annual disparity study and annual participation goals for City contracting that has taken disadvantaged businesses from less than 8 percent participation to over 30 percent participation in terms of total contracting dollars. Most of that participation comes in the contracting area of personal and professional services (PPS)– but there is still severe underutilization of African Americans on public works (PW) projects for both contractors and workers. There almost appears to be a trade-off – more PPS dollars in exchange for less PW dollars. But that is unfair to African Americans in the construction industry. The legislative mandate to change that is there – and legally valid.

The federal Constitution legal standards first enunciated in City of Richmond vs. J. A. Croson Co. (1989) compel the use of disparity studies for goal setting. In that case, the U. S. Supreme Court announced a strict standard of judicial review for state and local programs that contain race-conscious goals. The programs must be justified by a compelling government interest and narrowly tailored to accomplish its remedial purpose. The compelling government interest should be the disparity found in its own contracting. Through statistical analysis and a legally accepted methodology of determining disparities in the awarding of City contracts, the annual disparity study supports the factual predicate the caselaw requires. The goals are legal, but not fully enforced.

Without race-conscious public policy, businesses owned by white men would still be receiving over 90 percent of City contracting dollars. It is not enough to have an anti-discrimination policy on paper – there must be race-conscious goals for real economic justice.