Merely Judgment: Ignoring, Evading, and Trumping the Supreme Court

3 Portland and Unsuccessful Court–Elected Branch Interaction

In the 1983 movie War Games, a computer programmed to think and speak runs through several simulations of both tic-tac-toe and the “real-life” game Global Thermonuclear War. Failing to find a winnable pattern to ensure victory, the computer declares, “Strange game. The only way to win is not to play at all.” The City of Portland , Oregon, has similarly learned how not to play the litigation game. Rather than constantly amending its affirmative action program for government contracting in reaction to the courts, the city has been able to maintain its unconstitutional affirmative action program by blocking the threat of litigation against the city. When the U.S. Supreme Court decided Croson in January 1989, Portland’s city attorney, Madelyn Wessel, believed the city had few options. Wessel read the decision, and especially the Court’s doctrinal discussion of how to craft a constitutional affirmative action program; she recommended to then mayor J. E. “Bud” Clark that Portland’s minority business enterprise (MBE) program would not withstand legal challenge and must be repealed. Mayor Clark made it known to the city commissioners that the city’s affirmative action program, which dated to the 1970s, would have to be eliminated. In the mid-1990s, however, new Portland mayor Vera Katz led a consortium of governments in the process of establishing new affirmative action programs. In attempted partial compliance with 3 PORTLAND AND UNSUCCESSFUL COURT–ELECTED BRANCH INTERACTIONS PORTLAND AND UNSUCCESSFUL INTERACTIONS 77 the Court’s opinion in Croson and related decisions from the U.S. Court of Appeals for the Ninth Circuit, local governments banded together in their efforts to undertake the costly disparity study process . This process resulted in a hefty fourteen-volume report detailing even arcane historical artifacts, past government and private sector practices, and contracting results, which was used by the city and other local governments to establish new MBE programs designed from the contours of Croson. But even as Portland put forward its new affirmative action program, built in line with the Croson doctrine, the city also knew that litigation was a dead end. The judicial standards had proven to be illusory, and the only way to maintain the program would be to insulate it from legal challenge . Portland, rather than assuming an adversarial posture against Associated General Contractors, brought AGC into the fold and made concessions to the interest group that ensured the survival of the affirmative action program despite its unconstitutionality. The Road to, From, and Back to Affirmative Action In the 1970s, the City of Portland began to pass a series of civil rights ordinances designed to address the needs of its minority communities . Though there had been a number of protests and lawsuits against the city or the local unions in the 1960s, it was not until black, Hispanic, and Asian populations began to move into the city from the outlying areas in the 1970s that the city’s legislative agenda appreciably changed. In 1974, Portland passed a contract compliance ordinance that required all firms contracting with the city to be certified as equal opportunity employers. By 1979 the city had passed what it thought was a comprehensive approach to encourage MBEs to contract with the city, including a 10 percent utilization requirement on contracts in excess of $100,000. To be sure, the city’s mostly white population was not uniformly enthusiastic about the plan. The disdain of one contractor, then a supplier of heavy duty trucks to the city, was reported in the local papers after Portland passed yet another affirmative action ordinance in 1976: “We’re not able to go out to some pig trough somewhere and pick up some kind of revenue sharing money to meet affirmative action plans.” Despite some vocal and active opposition 78 MERELY JUDGMENT from the white community, in the late 1980s the City of Portland maintained its 10 percent MBE participation rate on municipal construction contracts. In the late 1980s, however, two judicial decisions changed the landscape of minority contracting in the Portland area. First, in late 1988 a federal judge in Oregon struck down Multnomah County’s (the county fully encompassing the City of Portland) MBE program in response to a lawsuit brought by a white contractor and an interest group, AGC. Then in January 1989, the U.S. Supreme Court issued its opinion in Croson...