In Philadelphia, if you are a brother, you get more love.

Reconstruction site of President's House on Independence Mall

President's House for Washington and John Adams.

Nutter Endorsement Of Discrimination Dishonors Americans

BY GREGORY J. SULLIVAN, THE BULLETIN
THURSDAY, SEPTEMBER 10, 2009

That 67 percent of the subcontracts awarded for the construction of the President’s House memorial on Independence Mall, the presidential dwelling of George Washington and John Adams, went to businesses owned by minorities (and women) is profoundly disturbing news of racial (and sexual) discrimination. Rather than being chagrined by this violation of the United States Constitution, Mayor Michael Nutter is celebrating this situation. (“Nutter praises hiring for President’s House work,” the headline in The Philadelphia Inquirer read.)

This policy is typical of his quota-obsessed view of race. Though he is a man of moderate demeanor, Mayor Nutter is driven by a Sharptonesque extremism on the use of race in hiring and awarding contracts. Even before he officially assumed office, Mayor Nutter aggressively coerced racially discriminatory hiring for the work on the expansion of the Convention Center. He relishes the manipulation of race to benefit minorities and disadvantage whites when distributing governmental benefits. The press release issued by the20Independence National Historical Park and City of Philadelphia gushed that its quota-mongering means that the successful subcontracting firms include “six African-American owned firms (of which one is also woman-owned), one Hispanic-American firm, one Asian-American firm and five firms owned by women.”

Rather than using a lawful, race-neutral process of awarding subcontracts, those responsible for the awards deliberately sought to increase minority and female participation. To do so, they inevitably engaged in racial and sexual discrimination. This approach is a violation of the equal-protection clause of the fourteenth amendment (“No state shall . . . deny to any person within its jurisdiction the equal protection of the laws.”). In City of Richmond v. J.A. Croson Co. ( 1989), the Supreme Court determined that racial classifications similar to the one used in the subcontracting process of the President’s House are never justified unless there is a specific past wrong that needs a remedy. (Of course, in Philadelphia, the only specific examples of racial discrimination in public contracting in decades are those against white and mal e contractors.)

Mayor Nutter routinely acts in complete disregard of this constitutional mandate, and he is not shy about his actions. As the press release noted: “Mayor Michael A. Nutter, a supporter of the President’s House project even prior to becoming mayor, enthusiastically endorsed the sub-contractor selection process. ‘My administration is 100 percent behind the goal of significant and meaningful participation from African-Americans for a project that sheds light on obscured facts about the African-American experience in our nation’s history. Minority participation in this project is not only logical, but respectful to an important historic legacy,’ said Mayor Nutter.”

“We are constantly trying to right the wrongs of the past,” Mayor Nutter has declared. “I think, this time, we got this one right.” With his indefensible use of race, Nutter got this one exactly wrong. Justice Antonin Scalia, in his concurring opinion in Croson, provided the decisive rebuttal to Nutter’s rationale for discrimination:

“It is plainly true that in our society blacks have suffered discrimination immeasurably greater than any directed at other racial groups. But those who believe that racial preferences can help to ‘even the score’ display, and reinforce, a manner of thinking by race that was the source of the injustice and that will, if it endures within our society, be the source of more injustice still. ... Racial preferences appear to ‘even the score’ (in some small degree) only if one embraces the proposition that our society is appropriately viewed as divided into races, making it right that an injustice rendered in the past to a black man should be compensated for by discriminating against a white. Nothing is worth that embrace.”

The award of public contracts should be driven by a concern for the best work available at the best price. The public benefits when this race-neutral standard controls the process. Race, however, corrupts the awarding of public contracts with egregious unfairness to entirely innocent parties. Moreover, the public suffers from inferior work or higher prices (or both). Most dangerously, the common good is rotted by preferences based on skin color or sex. Mayor Nutter’s enthusiasm for so deleterious — and unconstitutional — a policy is a disgrace. His endorsement of discrimination in public contracting dishonors all Americans, from Washington to the present. The elimination of race and sex from this process is the only way to guarantee equality before the law. This is a legacy that must be respected.

Gregory J. Sullivan (Gregoryjsull@aol.com) is a lawyer who resides in Bucks County.