Alameda County sued by anti-affirmative action group
Alameda County’s efforts to ensure that minority and women-owned businesses get a share of state construction contracts violate the US and California constitutions, according to a lawsuit filed against the county in court this week.
Lawyers for a San Diego group called Californians for Equal Rights Foundation say the Alameda County Public Works Agency and its General Services Agency both oversee similar programs that “force general contractors to discriminate against sub -contractors” if they do not belong to a minority.
“The government should not pick winners and losers based on race or color,” Chunhua Liao said in a statement. Liao, an Alameda County resident and activist, is a plaintiff in the case.
The county programs — which push contractors working on many Alameda County projects to have at least 15% of the work done by minority-owned businesses and at least 5% by women-owned businesses — amount to “government-sanctioned racial discrimination”. according to the July 25 trial.
Wen Fa, an attorney with the Pacific Legal Foundation who filed the lawsuit, said the programs violate the equal protection clause of the 14th Amendment to the US Constitution and California’s constitutional ban on racial preferences.
Although the county refers to the programs as “participation goals,” Fa said in an interview that they act more like minority allowances and introduce “racial quotas” into public procurement.
“If a prime contractor is unable to achieve these goals, then that prime contractor risks having their bid rejected,” Fa said.
The county allows contractors to win a contract if they don’t meet the thresholds, but only if they can show they made “good faith efforts” to find minority contractors in the process, which, according to the Fa, can open the door to fraud.
He also said that missing the thresholds is a risky bet that general contractors generally don’t want to take.
“This will force the prime contractor to choose a sub-contractor not because of the qualifications of the sub-contractor to do the job, but simply because the sub-contractor is a minority-owned business and their participation will help the main contractor to achieve the goals,” said Fa.
He said this prevents contractors from being able to “compete fairly in public procurement”.
Fa said the purpose of the lawsuit is to push Alameda County to scrap participation goal programs altogether and implement a “transparent, fair, and open contracting process.”
Bisa Grant, CEO of Anchor, an Oakland construction management and engineering company that does business with Alameda County, said she thinks the turnout targets should be maintained.
“Thank goodness they exist,” she said in an interview Thursday.
Grant, a black woman, took over the company after working there for more than a decade in a management role. She said county programs help level the playing field that has long been skewed.
“Otherwise we would be like a youth football team starting from scratch versus a private college that has historically been well funded and has a great network and all the resources. We wouldn’t stand a chance, a leg to stand on,” she said.
“A lot of the time, organizations like this say, ‘It’s not fair because we have to turn people away,'” Grant said of longtime companies that have established networks of sub- contractors with whom they work.
“You deny us anyway – we are always denied. We have always been denied, there is simply no mandate to prevent this. So for me, thank goodness” for county programs, she said.
“It enlightens us a lot more and gives us the opportunity to build a business, a viable business where we can employ people. People who can support families. Because I have a leg to stand on when it comes to competing against people who have been in this industry for a long time,” she said.
The directors of the General Services Agency and the County Public Works Agency and the Alameda County Attorney’s Office did not respond to requests for comment regarding the lawsuit. Alameda County Board of Supervisors Chairman Keith Carson declined to comment due to ongoing litigation.
“I hope these policies comply with the law. If they’re not, we’ll have to make adjustments,” supervisor David Haubert said in an interview.
He said Alameda is a “majority-minority county” and that the percentages the county pushes for in public procurement strike him as “reasonable goals.”
“I stand by the intent, which is to help create jobs for people who reflect people in our community,” he said.
Fa said that in addition to Liao, an activist, the other plaintiff in the case is Deborah Ferrari, a trucking industry consultant. Both Liao and Ferrari are residents of Alameda County.
Californians for Equal Rights is a group that was formed in 2020 to oppose California’s Proposition 16, which would have overturned California’s affirmative action ban. Proposition 209, which was passed in 1996, prohibits affirmative action in public employment, public education, and public contracting.
“Proposition 16 was canceled in 2020, it’s a big win for us, but many public bodies are still trying to circumvent Proposition 209,” said Wenyuan Yu, executive director of the group, in an interview.
She said there was no “real empirical evidence” that women- and minority-owned businesses have been harmed or left behind in government procurement since Proposition 209 took effect.
“You can’t fight discrimination with more discrimination, and you can’t fight fire with fire,” she said.
Grant, the owner of the engineering company, said she appreciates Alameda County’s efforts to support minority and women-owned businesses, even if the policies aren’t perfect.
“I think any system is going to have its challenges, but instead of chasing it and getting rid of it, my experience says there are certain things that should be mandatory,” she said.
“I think the system needs to be strengthened, not weakened or dispelled,” she said.