ROANOKE TIMES
Copyright (c) 1996, Roanoke Times
DATE: Monday, January 15, 1996 TAG: 9601150074
SECTION: VIRGINIA PAGE: C-1 EDITION: METRO
DATELINE: RICHMOND
SOURCE: MARGARET EDDS STAFF WRITER
The Virginia Department of Transportation has quietly dropped a long-standing goal of awarding at least 5 percent of state highway construction dollars to firms owned by minorities or women.
The unpublicized decision, which took effect Jan. 1, stemmed from fears that a U.S. Supreme Court ruling last June could spur legal challenges to the Virginia policy, department officials said.
Some minority business owners and a spokesman for the American Civil Liberties Union question that interpretation. They argue that Adarand vs. Pena, a Colorado case, applies only loosely to the state policy and that the shift is primarily political, reflecting the anti-affirmative action position of Gov. George Allen's administration.
Dropping the goal could jeopardize one of the commonwealth's most successful programs to spread public tax dollars to companies headed by minorities and women, they say.
In 1994, $23.5 million in state highway construction funds went to businesses headed by women and $46.5 million to companies headed by minorities.
Total state procurement by minority-owned businesses was $70 million that year, according to the Office of Minority Business Enterprise.
The policy shift is ``a substantial change, because the goals have allowed a lot of minorities to participate in a field that historically has been all-white,'' said Layton Fairchild, president of Fairchild Trucking in Spotsylvania County.
Fairchild, who is black, said he does not believe the change was mandated by the Supreme Court. ``It's a reflection of the national agenda to stem the tide of affirmative action,'' he said.
VDOT officials counter that dropping the 5 percent goal was prudent, given the high court's ruling that race-based federal policies must be narrowly focused and address identifiable past discrimination.
State officials also decided to abandon a policy, adopted in 1987, in which Virginia voluntarily tacked an extra 2 percent onto the federal requirement that 10 percent of federal highway contracts go to companies headed by minorities or women.
The 10 percent requirement remains.
The policy changes were initiated by top department officials and by lawyers from the attorney general's office, not by Allen or his transportation secretary, VDOT spokesman A.W. Coates Jr. said.
The governor's philosophy ``was in the background of these discussions, but it was not the driving force,'' Coates said.
Transportation Secretary Robert Martinez has indicated that he does not expect female or minority participation to drop as a result of the change, Coates said. ``It's not our intent to lessen the achievement,'' he said, noting that such involvement still will be informally encouraged.
Some minority contractors doubt that encouragement will suffice. Without the requirement that companies bidding on state projects advertise for and actively solicit minority and female subcontractors, many will abandon such outreach, predicted Claudia Lewis, co-owner of Lewis Construction Co., a New River firm.
``If they don't have to, they won't be bothered with it,'' she said. ``It'll be less paperwork for them.''
Lewis, who is black, said she and her husband depend on such solicitations and advertisements for information about available jobs.
The state ``goal'' was not binding, even though companies bidding on state projects were required to show that they had actively sought minority and female involvement. In only a handful of cases was a low bidder denied a job for failure to comply with the minority goals, said Morris Walker, equal opportunity manager for VDOT.
Many disadvantaged companies will continue to get work because of quality performance, but ``in some cases, it's going to be lost,'' Walker said.
In addition to the state highway work, disadvantaged businesses were awarded $36 million in federal projects in Virginia in 1994.
That is about 17 percent of the total federal contract dollars awarded. The 10 percent of the awards on state projects went to such companies.
The long-awaited and highly publicized Adarand decision came in a case in which a white-owned Colorado Springs company successfully challenged a Small Business Administration policy of giving bonuses to government contractors that subcontract at least 10 percent of their work to disadvantaged firms.
The Supreme Court held that government can treat people differently because of race only for compelling reasons. The justices prescribed a standard of ``strict scrutiny'' in which those enacting such a policy must show that it serves a compelling governmental interest and is closely tied to proven past discrimination.
That ruling does not prohibit the sort of ``goals'' imposed by VDOT, said Kent Willis, executive director of the state ACLU. The focus of recent Supreme Court decisions has been to ask government agencies ``to document the rationality of their plans rather than assuming discrimination occurs,'' he said.
``That would be the extent of what they need to do to comply with the current state of the law,'' he said.
Dick Daugherity, executive director of the Virginia Road and Transportation Builders Association, disagreed. ``We did not ask for this change,'' he said. ``It came because it was obvious to the state that if they continued, they were in noncompliance'' with the ruling.
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