Courtrooms nationwide are currently the battlefields for the fight that will determine the constitutionality of affirmative action. On the state level, the controversy is presented before the Supreme Court of the State of Ohio on appeal of an earlier decision by the Court of Common Pleas in Franklin, Ohio. A decision must be made regarding the constitutionality of affirmative action and whether it has reached its goal. It is our contention that this program should be held unconstitutional by the Supreme Court of Ohio.
Ritchey Produce Company, Inc., the appellee, originally brought this case to the Court of Common Pleas for Franklin, Ohio. Ritchey contended that the Ohio Minority Business Enterprise (MBE) program violated his Fifth and Fourteenth Amendments under the United States Constitution. The MBE program’s original purpose was to remedy past discrimination by requiring the holding of public contracts for certain economically disadvantaged groups, namely African Americans, American Indians, Hispanics, and Orientals. R.C. 125.081 states:
From the purchase that the department of administrative services is required by law to make through competitive selection, the director shall select a number of such purchases, the aggregate value of which equals approximately fifteen percent of the estimated total value of all such purchases to be made in the current fiscal year. The director shall set aside the purchases selected for competition only by minority business enterprises as defined in the division (E) (1) of section 122.71 of the Revised Code.
The ORC 122.71 (E) (1) defines Minority Business enterprises as follows:
’Minority Business Enterprise’ means an individual, partnership, corporation, or joint venture of any kind that is owned and controlled by United States citizen, residents of Ohio, who are members of the following economically disadvantaged group: Blacks, American Indian, Hispanics and Orientals.
However, by case law, the statute has been enlarged to include Asian Indians as Orientals (DLZ Corp. v. ODAS (1995), 122 Ohio App. 3d 777.
On August 15, 1991, Ritchey Produce was given the MBE certification by the Equal Employment Opportunity Commission (EEOC). In 1995, the DAS investigated and did not recertify Ritchey Produce for the year of 1995-96 because Ritchey was Lebanese. He was not Oriental or a member of any other group specifically defined in the statute.
We contend that the racial classifications in the MBE statute are unconstitutional and must focus on the words "economically disadvantaged." The setting aside of contracts for these specified races presumes that they are the only economically disadvantaged races. There may be someone of a non-specified race that is economically disadvantaged while conversely there may be African Americans, Hispanics, American Indians, or Oriental contractors who are not.
This court must review the Ohio Minority Business Enterprise (MBE) program under the strictest constitutional standards mandated by the United States Supreme Court decision in Adarand Construction, Inc. v. Pena (1995). In a decision written by Justice O’Connor, the court decided that all racial classifications are subject to strict scrutiny; thus, they are considered constitutional only if there are narrowly tailored measures that further compel government interest. Notwithstanding, concurrent opinions given by several key justices should also be noted. Justice Scalia wrote in concurrence that government classifications made on the basis of race are a form of discrimination, which is unallowable under the constitution.
Richmond v. J. A. Croson Co. (1989) should be of particular interest to this court because of the incredible similarities. In this case, the city of Richmond, Virginia concluded that minority businesses were underrepresented in the local construction industry. The city enacted a program mandating that 30% of all city construction contracts be awarded to minority businesses. This case is also similar because the city of Richmond found no evidence of discrimination. J.A. Croson Co., like Ritchey, challenged this ordinance because it violated the Constitution’s Equal Protection Clause. The Supreme Court decision, also written by O’Connor, answered the question of whether a city or a state may enact minority set-aside programs. They answered negatively in an 8-1 decision. O’Connor stated that a mere finding of underrepresentation was not proof of discrimination. Concurrence should also be noted in this case. Justice Scalia wrote that to remedy past discrimination is n
ot basis for present discrimination; two wrongs do not make a right. Justice Kennedy also stated in concurrence that the court would almost always invalidate racial preference.
Racial preferences have long been held unconstitutional by the Supreme Court. In the landmark case of Regents of University of California v. Bakke (1978), Bakke claimed the University of Califorinia used race preferences in its medical school admissions process. The court held in an opinion written by Justice Powell, that Equal Protection prohibits discrimination regardless of race. It protects both minorities and the white majority. Discrimination to aid minorities at the expense of the white majority is facially invalid where race is the sole criterion. Innocent third parties should not be penalized for general societal discrimination.
Racial discrimination has long been understood to be unconstitutional. For example, the Supreme Court ruled that the Fourteenth Amendment was written to prevent states from discriminating between individuals because of race Washington v. Davis, 426 U.S. 229 (1976). Moreover, equal protection attempts to make the issue of race irrelevant in government decision-making, Palmore v. Sidoti, 466 U.S. 429 (1984). "Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality," Hirabayashi v. United States 320 U.S. 81 (1943). "Preferring members of any one group for no other reason than race or ethnic origin is discrimination for its own sake. This the constitution forbids," Regents of University of California v. Bakke 438 U.S. 265 (1978)
It should also be inquired, in the event that the Supreme Court of Ohio upholds MBE racial requirements, if a Lebanese American can also be included as a discriminated minority. The rationale of this comes from the Tenth District Court of Appeals decision of DLZ Corp. v. Ohio Department of Admin. Serv. 102 Ohio App. 3d 777. This case did not rule on the constitutionality of the MBE program, but on the issue of statutory construction. The court ruled that "Oriental," as used in the statute defining eligibility in the MBE set aside program, included people with origins in India.
We would like to point out that Judge Danial Hogan in the lower court wrote in his decision: "Working our way north and west from India we first come to Pakistan, then Iran, then Iraq, then Syria, and finally Lebanon. If Asian Indians are ’Oriental,’ shall we exclude Pakistanis separate from India only by the Great Indian Desert? And if Pakistanis are ’Oriental,’ shall we exclude Iraq separate from Iran only by the Zagros Mountains? And if Iraq is ’Oriental,’ shall we exclude Syria for the Euphrates River flows through both countries? And finally if Syria is ’Oriental,’ how can its contiguous neighbor Lebanon be anything but ’Oriental’?"
Denying Ritchey public contracts because of the race requirement in the MBE statute is discrimination. This type of prejudice should be and has long been, held unconstitutional. We ask this court to reaffirm the Court of Common Pleas’ decision, which changed the statute to eliminate the race requirement. We also ask this court to order the Department of Administrative Service to decide Ritchey’s status as economically disadvantaged.
Brian D. Wright of North Syracuse, New York is a junior attending Baldwin Wallace College in Berea, Ohio, majoring in Political Science and Pre-Law. Presently, he is in Washington D.C. attending American University and interning at The Republican National Committee.
Casey G. Wright of North Syracuse, New York is a junior attending Ashland University in Ashland, Ohio, majoring in Comprehensive Social Studies.