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JONI JAMESThe governor will rework One Florida's contract provisions after a ruling that they aren't neutral on race, ethnicity and gender.
TALLAHASSEE - A federal judge has ruled unconstitutional a key element of One Florida, Gov. Jeb Bush's highly touted push to eliminate affirmative action in state contracts, because it still requires state agencies to consider race and gender in awarding contracts.
The ruling, issued late Friday by U.S. District Judge Stephan P. Mickle in Tallahassee, is a huge win for the plaintiffs, the Florida Associated General Contractors. The influential group's opposition to affirmative action was largely responsible for Bush hatching One Florida, which also eliminated race-based state university admissions.
The portion of One Florida that addresses university admissions is not affected by the court ruling.
The Governor's Office said Sunday that it would try to change the One Florida state contracting program rather than appeal the judge's decision.
The commercial builders' group has always argued the portion of One Florida that pertained to state contracting did not go far enough in eliminating the consideration of race, ethnicity or gender, thereby violating the "equal protection" clause of the U.S. Constitution.
"We obviously are very relieved," Allen Douglas, executive director for the contractors' group, said Sunday.
The decision comes five years after his group first invited Ward Connerly, the father of California's measure against affirmative action, to help launch a similar petition drive in Florida. Bush crafted One Florida to blunt what he considered Connerly's divisive approach, and the state Supreme Court eventually ruled the petition was too confusing to make the ballot.
"This case should serve as notice to governments in Florida that the Associated General Contractors will take them on if what they are doing is unconstitutional," Douglas said.
How the ruling will ultimately impact state agencies, from state universities to the Florida Department of Law Enforcement, or the contracts they award was not clear Sunday. The judge asked both parties to suggest remedies by Feb. 20.
The judge's decision came Friday afternoon just as the Republican governor's office and the contractors' group had reached agreement on how the governor's agencies - roughly half of all those in state government - should award construction contracts.
The agreement suggests Bush is sympathetic to the views of critics who have argued his One Florida plan, as eventually adopted by the 2000 Legislature, fell far short of eliminating what they considered discrimination against white contractors.
Bush, whose One Florida education plan sparked a march on Tallahassee, acquiesced significantly during the legislative session on the contract portion of his initiative, meaning state law still lists percentage goals for how much state business should be awarded to individual minority groups.
In the end, only the agencies led by the governor claimed to ban race from consideration in contracts, but all state agencies were required to coordinate their contract efforts with the new Office of Supplier Diversity that Bush had proposed. While the office did not pick vendors, its mission was to help recruit minority vendors to apply for contracts or subcontracts.
As a result, Bush has been able to boast that contracts to minority vendors have increased more than 200 percent since 2000, in part because the state made it easier for a company to quality as minority- or female-owned.
"Our interest was to reach an agreement with AGC recognizing that there was a significant amount of common ground," Jill Bratina, Bush's communication director, said Sunday. "We feel like the governor's vision and practice of his office and his agencies has always been consistent with what's comprised in the settlement."
Under the settlement agreement, which will be offered to the judge, Bush's agencies would continue to ban consideration of race or gender in awarding construction contracts but would implement a new program aimed at helping any small-business owner, regardless of race and gender, to compete.
Mickle's ruling suggests such a strategy would be acceptable. He chastised the state for not entertaining "race-neutral" means for achieving greater diversity among state vendors such as "simplification of bidding procedures, relaxation of bonding requirements and training and financial aid for disadvantage entrepreneurs of all races (which) would open the public contracting market to all those who have suffered the effects of past discrimination."
Mickle made clear his ruling was "not to suggest that racial discrimination is no longer rampant throughout society." He wrote: "The United States of America has a brutal racial legacy."
But the judge wrote that he is bound by 15-year-old U.S. Supreme Court decision, City of Richmond vs. J.A. Croson, that found that government racial-preference laws are constitutional only when they are narrowly tailored to remedy past or present discrimination.
Florida's law, Mickle said, had not met that standard. Further, the judge rejected Bush's contention that the Office of Supplier Diversity, charged with identifying and encouraging minority vendors to apply for state contracts, was merely a resource for government agencies because it did not mandate certain vendors be hired.
"State agencies are required to coordinate their minority business enterprise procurement activities with the OSD," Mickle wrote, noting the office had the power to audit state agencies that are found to have failed to follow their "minority business enterprise utilization plan."
"Though alleged to be permissive ... (the law) is not," Mickle wrote.