BY MICHAEL HAWTHORNE
Enquirer Columbus Bureau
COLUMBUS -- In a far-reaching ruling, a federal judge Wednesday struck down Ohio's affirmative action program for state construction contracts.
Ruling from the bench following a two-day trial, U.S. District Judge James L. Graham in Columbus said the state failed to prove that minority firms benefiting from the program had been discriminated against.
The decision is the latest in a series of setbacks for affirmative action across the country. It came less than a week before voters in Washington state decide a proposed ban on race and gender preferences patterned after California's groundbreaking Proposition 209.
Ohio's program set aside a percentage of state construction contracts for African-Americans, Hispanics, American Indians and Asians. Minority firms collected more than $17 million through the program in the budget year that ended June 30, according to the state Department of Administrative Services.
The Associated General Contractors of Ohio challenged the 18-year-old set-aside law, arguing that state officials relied on "outdated, irrelevant and legally questionable evidence" of discrimination in state contracting procedures.
"When the courts get a chance to really look into these programs, they're finding them unconstitutional," said Columbus lawyer Kevin McDermott, who represents the contractors' association.
Judge Graham's ruling appeared to catch state officials off guard. Mike Dawson, spokesman for Gov. George Voinovich, said the administration won't decide whether to file an appeal until after the judge releases a written opinion.
State Sen. Jeff Johnson, a Cleveland Democrat who heads the Ohio Legislative Black Caucus, concedes the program has flaws but thinks it can be mended.
"We are very disappointed in Judge Graham's ruling and vehemently disagree with his assessment," Mr. Johnson said.
Programs that grant preferences to minorities have been under intense legal and political scrutiny across Ohio and the rest of the nation.
Like Wednesday's ruling, most of the cases have revolved 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.
Earlier this year, the city of Cincinnati abandoned its controversial law doubling or tripling minority set-asides on the Fort Washington Way overhaul.
While the city had commissioned a University of Cincinnati study that concluded minorities had been discriminated against, the contractors' association said the data did not meet the standard established by the U.S. Supreme Court.
Hamilton County officials settled a similar lawsuit in April after an upstate New York demolition firm sued the county saying it was not chosen for riverfront demolition work despite being the low bidder. Instead, county commissioners gave the contract to a female-owned Cincinnati firm.
It's unclear what effect Judge Graham's ruling will have on a similar case moving through the state courts. The Ohio Supreme Court is scheduled to hear oral arguments in the case Nov. 10.
At the state level, a group of conservative lawmakers has called for an end to all racial or gender preferences in state hiring and contracting. Their plan also would prevent colleges from considering race or gender when determining scholarships and admissions.
"It would be a mistake to appeal the judge's decision," said one of the proposal's chief sponsors, Sen. Gene Watts, R-Dublin. "Our law is so clearly unconstitutional, and I would add, wrong." Mr. Voinovich and Republican legislative leaders pressured the group to hold off on their proposal because they didn't want to take on such a thorny issue in an election year.
The governor's opposition was welcomed by black lawmakers, who mobilized civil rights leaders to fight the proposal when it was unveiled last fall.
Mr. Voinovich, who is running for the U.S. Senate, continues to advocate changes to the set-aside program but does not want to dismantle it altogether.
He has called for replacing the race-based program with one based on social and economic need. Such changes could open the program to previously excluded groups, including women and Appalachians.
Black lawmakers say they will vigorously challenge any plan to end race- and gender-based affirmative action.
"There is plenty of evidence of discrimination out there," Mr. Johnson said. "The problem is we are fighting this battle on so many fronts."
