The NBCC is making grand statements: They suggest that state and local agencies should be denied federal funding, and they believe the state's black contractors are owed a whole lot of money--some estimate the amount to be in the trillions.
And they're not a bunch of crackpots. The man behind the plan, National NBCC Chair Arthur Fletcher, has an impressive track record. As Nixon's Assistant Secretary of Labor, Fletcher authored the Philadelphia Order, which essentially established affirmative action as we know it. He's also the former Chair of the U.S. Commission on Civil Rights.
The basis for their case rests in Title VI of the 1964 Civil Rights Act, which prohibits discrimination in federally funded programs. The U.S. Supreme Court recently narrowed that standard, but said affirmative action must still be applied in industries where bias has been a problem. However, studies from around the country show that, by and large, that's not happening. "All of these laws from the '60s are just pieces of paper, until someone does something about them in the courts or with federal sanctions," Fletcher says.
The local chapter of the NBCC is the first to work the Title VI angle, and Christopher Edley, a Harvard law professor who consults for the White House on civil rights issues, thinks it just might work. He calls their complaint "very significant," and says it could "present a new strategy for combating illegal discrimination."
In order to prove bias by Washington's state, county, and city agencies, the NBCC is using a standard set by the U.S. Supreme Court--that there has to be a disparity between the percentage of available minority firms (as part of the entire pool) and the percentage of those firms employed by the government. It points to a state-contracted study released in September 1998 that shows that from 1994 to 1996, African Americans represented 4.76 percent of available firms, but received only .33 percent of "construction prime contract dollars" and 3.16 percent of subcontractor dollars. On top of that, though they made up 6.12 percent of available consultants, black companies were used only .12 percent of the time. The study concluded that "minority participation in the city of Seattle's contracts is limited by active and passive discriminatory business practices."
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The NBCC was started in 1993 to get African Americans "involved in the economy through small businesses." Its 62,000 members are concentrated in the western part of the U.S., because "that's where the growth and opportunity and construction is," says Fletcher.
That's also why J.J. Jones and other leaders of Washington's NBCC moved here from Memphis and started a construction company in 1993. Jones says he's had a hard time getting state contracts. "I'm part of the 4.76 percent available minority construction firms, and I'm not part of .33 percent who get prime contracts. I'm bondable, ready to work, and I'm not getting jobs because of policies that exclude me."
After eight years in boomtown Seattle, Jones is sick of "driving down the highway and seeing not one black crew, not one Korean crew, not one woman-owned crew." The NBCC is working with the National Hispanic Chamber of Commerce, the Filipino Chamber of Commerce, and the National Organization for Women to file concurrent federal suits. The Seattle branch of National Organization of Women has already made a move, voting last Tuesday to file a federal complaint against the city of Seattle and state of Washington.
The NBCC hopes to file Title VI complaints in 35 states where disparity reports come up short. Washington is leading the pack because of "courage and money," according to Fletcher. "I've talked to people in Ohio and Michigan and lots of other places with similar studies, and they're just scared of the repercussions, or they don't have the resources to get it together yet."
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Leaning against the table in one of the cavernous red-and-gold booths at McGowan's, a Renton joint where Sunday's gospel brunch is in high gear, J.J. Jones adds up figures on a greasy napkin. He's trying to come up with the exact amount of money he thinks Washington owes its black population. The figure tops $6 trillion.
Jones' dad was the famous Negro League baseball player Casey Jones, who he says is the subject of the poem "Casey at the Bat." His buddy and NBCC President Eddie Rye's uncle started the Brotherhood of Sleeping Car Porters with A. Philip Randolph, who was known at one point as "the most dangerous black man in America." These two were raised to think big.
But bravado and confidence aren't the only things making Washington's NBCC gung-ho on Title VI. The passage of I-200 has forced the state to look for new ways to abide by civil rights principles. It's no coincidence that the only other state facing a Title VI complaint is California--also the only other state with an anti-affirmative action law.
It's hard to find ways to meld anti-affirmative action laws with other state and federal requirements. For instance, Washington state legislators proposed a 12 percent cut (amounting to $315,000) from the Office of Women and Minority Business Enterprises (OWMBE). They argue that due to I-200, the office no longer has to work on state programs. Never mind that the state study that found discrimination in contractor hiring partly blamed the disparities on an underfunded OWMBE.
This reflects a basic ignorance about civil rights law, says Jim Medina, Director of Washington's OWMBE. "People don't understand what I-200 means. Legislators seem to think it means an end to any minority-based program. That's not the case. It has to be harmonized with existing statutes, which call for the creation of this office, among other things."
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The NBCC and the state study both note that the best way to ditch minority-owned subcontractors is to quit paying them. That's exactly what the head of a female-run plumbing company, who wishes to remain anonymous, says happened to her. She's been looking into filing a Title VI lawsuit because, since January, when I-200 passed, she hasn't been paid by the state-hired contractor she was working for. "With I-200, as far as everybody thinks right now, there is no incentive for them to have to get along with us," she says.
In researching her claim, she found that state agencies don't understand the law. "They haven't had to understand it because before I-200 there was a blanket of protection that women and minority companies received," she says. The woman ended up having to call New York City and Washington, D.C. for advice on her complaint.
Juan Huey-Rey, who manages the contracting division of the OWMBE, says his office has undertaken a new report to show the current state of minority contractor hiring. But it's unlikely this updated information will present a rosier picture. Conversations with nearly a dozen minority contractors suggest that their situations have worsened under I-200.
• Taylor Mayfield, who runs Mayfield Hoisting Service, said contractors for jobs he was awarded before I-200 stopped calling him as soon as the law was passed.
• Craig Allen tried to get into the low-income housing renovation business, but had to give it up until he could gather start-up money. "I wanted to get some loans, but all I'm hearing is, 'We don't have that program anymore.'"
• Thomas Lauderdale, of Lauderdale Construction, points out that, post-I-200, he is the only minority contractor working on the African American Academy, a project that normally would have required 18-20 percent minority participation. Neil Jellison of Soltek Pacific Construction - the main contractor on the Academy project - says he doesn't know whether Lauderdale's claims are true because he's "not required" to keep track.
It was tough to drag comments about alleged non-compliance with Title VI out of government officials. The response from the mayor's office was typical: "We just don't know enough about it to say anything right now," said Press Coordinator Vivian Phillips.
Rob Holland, director of the Equal Citizenship Project--the folks who proposed I-200--spends his days making sure local governments are satisfactorily dismantling their affirmative action programs. He'd never heard of Title VI until contacted by The Stranger, but says the NBCC complaint sounds like "exactly what the state's citizens voted to get rid of by 58.2 percent in the last election. Now that I-200 has passed, I think the [NBCC] should get that claim thrown out.
"The way we here in the state of Washington want to deal with these issues is to move beyond those stale arguments," continues Holland, who is black. "I don't see going back to... asking those in society with power to affirm our actions, asking, 'Can we achieve? Can we have money to do this?' That's an old debate."