The opinion of the court was delivered by: James B. Moran, Senior District Judge
MEMORANDUM OPINION AND ORDER
Defendant City of Chicago objects to the March 26, 2002 Memorandum and
Order of Magistrate Judge Geraldine Brown. We overrule the substantive
objections and leave to another day the issue of fees.
The City wants trade unions and union apprenticeship programs to
produce documents responsive to 26 subpoenas. Why it wants them is not
entirely clear. There is one suggestion that it wants to interview
persons who have washed-out of apprentice programs, but the scope of the
subpoenas is far broader than that. For now, we assume that the City
wishes to establish a long entrenched pattern of discrimination in the
building trade unions that has adversely affected the ability of
minorities and women to become contractors capable of bidding on City
contracts.
In another thorough opinion Magistrate Judge Brown explained why she
believed that the subpoenas should be quashed. We overturn that
conclusion only if it is clearly erroneous or contrary to law. And the
riding is clearly erroneous only if we are left with the definite and
firm conviction that a mistake has been made. We are not at all
convinced.
That conclusion requires some review of the present state of the law
respecting affirmative action programs in public contracting — no
simple task. "The Supreme Court's declarations in the affirmative action
area are characterized by plurality and spilt opinions and by the
overruling of precedent. This fractured prism complicates the task of
lower courts in both identifying and applying an appropriate form of
equal protection review." Adarand Constructors, Inc. v. Slater,
228 F.3d 1147, 1161 (10th Cir. 2000). But some
assertions are beyond reasonable dispute and some strains seemed to have
emerged.
Following the contested presidential election of 1876, Plessy v.
Ferguson, 163 U.S. 537 (1896), and earlier cases, this nation retreated
from the promise of the Fourteenth Amendment for almost a century. Even
when we began to emerge from that long twilight the construction trades
and related craft unions resisted change and long remained bastions of
racial discrimination (and gender discrimination, although, for the sake
of simplicity, we will confine our comments to racial discrimination).
Even when overt racial discrimination has been declared unlawful, and
even if its overt manifestations have been significantly reduced (and how
significantly reduced is a matter much disputed), the lingering effects
of that pervasive discrimination are powerful. See Cunningham, Loury and
Skretney, "Passing Strict Scrutiny: Using Social Science to Design
Affirmative Action Programs," 90 Geo. L.J. 835 (2002).
The Fourteenth Amendment proclaims that no person shall be denied the
equal protection of the law, and that protection has been extended to
federal action. To what extent then, if at all, can the federal
government, the state; and local governments use racial preferences as a
means of remedying the effects of racial discrimination? Here we must
distinguish between Congress and the states and local governments. The
Fourteenth Amendment expressly grants to Congress the power to enforce
equal rights. That led a plurality in City of Richmond v. J.A., Croson
Co., 488 U.S. 469 (1989), to recognize a greater power in Congress to
deal with the legacy of discrimination by racial preferences than in the
states and local governments, even though its actions, like those of the
states and local governments, are subject to strict scrutiny. Adarand
Constructors, Inc. v. Pena, 515 U.S. 200 (1995). Racial classifications,
the Court recognized, are dangerous tools, as illustrated by Korematsu
v. United States, 323 U.S. 214 (1944).
But we are here dealing with a municipal ordinance, not a federal
statute, and City of Richmond v. J.A. Croson Co., supra, teaches that the
City can use racial classifications only as a remedy for its own past
discrimination or its passive participation in a system of racial
exclusion. What is "passive participation"? Whether and when to use
racial preferences as a remedy for past discrimination fractured the
Supreme Court in City of Richmond v. J.A. Croson Co., supra. Some said it
was never appropriate except as a remedy for specific victims of
discrimination. Others were prepared to defer to legislative judgments
that served important government objectives and were substantially
related to achievement of those objectives. The prevailing view then, and
still, as best we can determine, is that racial classifications can be
used as a remedy for past discrimination by the local government or its
passive participation, but it cannot be used as a tool to combat societal
discrimination.
Where do we draw the line between passive participation and general
societal discrimination? One can envision a scenario in which local
government had required that contractors be union members to bid on
municipal contracts, well knowing (even not well knowing) that the unions
threw up obstacles to union membership by minorities. Or perhaps the
local government insisted that contractors be members of a contractors
group because that group had an excellent program for certifying
competence, even though that group discriminated against minorities. The
local government would not itself be actively
discriminating in those
circumstances, but we think that would make it "a kind of joint
tortfeasor, coconspirator, or aider and abettor," Builders Association of
Greater Chicago v. County of Cook, 256 F.3d 642, 645 (7th Cir. 2001),
justifying using racial classification as a remedy. But here the City
does not require that contractors have any union affiliation or that
construction workers be members of a union, so long as they are paid
comparable wages. City of Richmond v. J.A. Croson, Inc., supra, at 498,
expressly referred to barriers to union membership and training programs
as an element of societal discrimination that did not justify racial
preferences as a remedy.
Can the concept of passive participation be stretched further? It has
been argued that it can. See e.g., Ayers and Van, "When Does Private
Discrimination Justify Public Affirmative Action?" 98 Columbia L.Rev.
1577 (1998). For instance, if there is discrimination in the private
market the share of the entire market going to minority enterprises is
lessened unless government steps in to increase that share by preferring
minority enterprises. And, certainly, government has a compelling
interest in remedying past or present discrimination. Engineering
Contractors Association of South Florida, Inc. v. Metropolitan Dade
County, 122 F.3d 895, 906 (11th Cir. 1997), cert. denied, 523 U.S. 1004
(1998). The court there expressed the view that, accordingly, the true
test of an affirmative action is usually not the nature of the
government's interest but rather the adequacy of the evidence of
discrimination offered to show that interest.
We think the nature of the discrimination more properly bears upon the
scope of constitutionally permissible remediation. A local government can
sanction a contractor for present discrimination. It can establish
race-neutral programs for small and fledgling enterprises that primarily
benefit minority enterprises as a remedy for the lingering effects of
past discrimination. But we believe that the Seventh Circuit, in Builders
Association or Greater Chicago v. County of Cook, supra, read Croson and
its progeny as restricting the remedy of racial preferences to instances
in which the local government has itself discriminated or has been in
some sense complicit in private discrimination.
In Adarand Constructors, Inc. v. Slater, supra, the court did rely upon
the sort of evidence defendant seeks here. That, however, related to a
federal program. While the court declined to address the precise
relationship between the Fourteenth Amendment and the power of Congress
(at p.1165), it was mindful that it was dealing with a congressional
enactment national in scope, a point recognized in Sherbrooke Turf, Inc.
v. Minnesota Department of Transportation, 2001 WL 1502841 (D. Minn.). A
municipality can attack discrimination directly. It can seek to eliminate
the lingering effects of past discrimination by race-neutral programs
providing assistance to newer and smaller enterprises. But it cannot use
racial classifications as a remedy for general societal discrimination,
and the Information sought by the subpoenas falls on that side of the
line.
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