Public contracting,policy preferences and minority business enterprises

About three years ago a Special Issue of the International Journal of Public Administration focused on the topic “Government Set-Asides, Minority Business Development, and Publi Contracting.”^(l) Much of the discussion in the issue addressed race conscious government set-aside programs in the aftermath of the U.S. Supreme Court decision in City of Richmond v. J. A. Croson Co. ⁽²⁾ The decision declared unconstitutional a local government minority business set-aside provision designed to help minority business enterprises (MBEs) obtain government contracts. At the time, the decision was applicable only to state and local governmental jurisdictions.⁽³⁾ Government set-asides involve the practice of providing minority contractors and subcontracting a certain percentage of a public jurisdiction's contract dollars.

In 1995 the Supreme Court in Adarand v. Pena ⁽⁴⁾ extended the Croson ruling to include set-aside programs in federal agencies. This Special Issues examines and discusses the Adarand decision and the developments that have followed. The first article by Mitchell F. Rice, “Federal Set-Asides Policy and Minority Business Contracting: Understanding the Adarand Decision,” reviews the Adarand decision and discusses the implications of the decision for minority business development. The next article by Audrey L. Mathews and Mitchell F. Rice, “Adarand v. Pena: Turning Challenges Into Opportunities,” uses a case study of two public preference programs to suggest how Adarand requirements may be successfully utilized to maintain set-aside preference programs.

The third article by Shelton Rhodes, “Mirmative Action Review ‘Report’ to the Presidents: Implications of Military Affirmative Actions Programs to Current and New Millennium Affirmative Action Programs,” reviews the Affirmative Action Review: Report to the President which was ordered by President Clinton soon after the Adarand decision. Rhodes considers the implications of the possible applicability of the successes of affirmative action and equal opportunity in the military, which is highlighted in the Report, to other public and private organizations. The final article by Wilbur C., Rich, “Presidents and Minority Set-Aside Policy: Race, Gender and Small Opportunities,” analyzes the impact of presidential leadership on minority set-asides policy and shows how politicians use set-asides to facilitate exchanges and cooperation with the business elites.     

State and local government set-aside programs and minority business development in the post-croson era: the efficacy of disparity studies

Since the Supreme Court's decision in City I of Richmond v. J. A. Croson in early 1989, disparity studies or minority business studies or discrimination studies have become a focal point in state and local government jurisdictions' Minority Business Enterprise set-aside policies. Disparity studies have been conducted in more than sixty jurisdictions around the United States. This article discusses (1) the status of MBE set-aside programs after Croson, (2) examines the efficacy of disparity studies as mechanisms for justifying the adoption or continuation of set-aside programs in state and local governmental jurisdictions, (3) provides discussion of specific procedural analyses which have been major components of a disparity study and (4) provides a summary discussion of disparity studies conducted in five jurisdictions. The conclusion notes several weaknesses of disparity studies that, if addressed, would enhance their utilty.     

Federal set-asides policy and minority business contracting: understanding the adarand decision

In Adarand Constructors v. Pena ⁽¹⁾, the Supreme Court ruled that federal affirmative action preference programs must undergo the “strict scrutiny” standard. A program subject to strict scrutiny is one that cannot pass muster under the Constitution's “equal protection” mandate unless there is a “compelling government interest” in its objectives and the program is “narrowly tailored” to meet the objectives. This paper reviews the Adarand decision and discusses the implications of the decision for minority business federal contracting.     

Measuring the impact of set-aside programs on the minority business sector

In addition to remedying discrimination, set-aside programs can play an important role in minority business development. While it is understood that set-aside programs have positive impacts on the minority business sector, the magnitude of these impacts has not been explored. This study is an econometric analysis of the economic impacts within the minority business sector that are attributable to City of Chicago spending with minority-owned firms. Where appropriate, and to better operate as business development tools, set-aside programs should target the emerging lines of minority enterprise, include Target Market Programs, and contain provisions for debundling large contracts.     

Government set-asides,minority business development,and public contracting: introduction

Race-conscious affirmative action programs have been a part of American life for nearly three decades. Race-conscious set-asides are the latest government programs implemented to alleviate the adverse economic impact of racial discrimination and to foster minority business development. Minority business enterprises (MBEs) have been the specific targets of federal, state, and local government enacted set-aside programs with the principal purpose of overcoming the continuing effects of earlier discrimination. Government set-aside programs may be classified as “hard ball” affirmative action programs because they “provide absolute references to members of designated minority groups.⁽¹⁾     

Federal contract policy and management: the small business administration 8(A) program

The federal Small Business Administration's 8(a) program raises issues of minority business empowerment and effective policy implementation. Given the role of enterprise in both addressing the historical and contemporary problems of minority economic and community development and in empowering minority communities, and given the current nature, extent and distribution of minority, particularly African-American business establishments, the performance of the 8(a) program as a substantial infusion of capital and experience into the African-American community is essential. According to a recent report of the Commission on Minority Business Development, the 8(a) is seriously flawed in the management of the problem. Regulation and enforcement, coordination, evaluation and monitoring and accountability are serious challenges to the viability of the program. Entrepreneurial empowerment is enhanced not only by effective policy development but also be effective policy implementation of the 8(a) and other set-aside programs.     

Judicial Disagreement need not be Political: Dissent on the Estonian Supreme Court

I investigate the non-unanimous decisions of judges on the Estonian Supreme Court. I argue that since judges on the court enjoy high de jure independence, dissent frequently, and are integrated in the normal judicial hierarchy, the Estonian Supreme Court is a crucial case for the presumption that judicial disagreement reveals policy preferences. I analyse dissenting opinions using an ideal point response model. Examining the characteristics of cases which discriminated with respect to the recovered dimension, I show that this dimension cannot be interpreted as a meaningful policy dimension, but instead reflects disagreement about the proper scope of constitutional redress.     

Affirmative action: A status report

Affirmative Action, largely dependent as it is upon Executive Orders and judge-made law, has been rather tenuous from time to time. It came under severe stress during the Reagan Administration. Yet, the 1986-89 Supreme Court decisions show that while no revolutionary strides were made, the “core principle” itself was reaffirmed. Consequently, there appear to be some salutary effects insofar as one sees some reversals of other agency postures. Thus, one can say that Affirmative Action survived after having withstood the most relentless assault so far. However, during the 1989 term, the Court opened up issues long settled thus casting a shadow on the prospects of AA. The imponderable is the future composition of the Supreme Court along with the opportunity accorded to President George Bush.     

Adarand v. pena: turning challenges into opportunities

This article provides a historical and legal overview of preference and set-aside programs. Further, the barriers and driving forces that have influenced preference programs are discussed. Finally, the processes, strategies, programs, and criteria employed at the Metropolitan Washington Airport Authority and Port Authority of New York and New Jersey, to meet the test of strict scrutiny in Adarand, will be explored and analyzed as alternatives for preference programs.     

Presidents and minority set-aside policies: race,gender and small opportunities

This essay analyzes the impact of presidential leadership on minority set-asides policy. It traces the origins of the policy and shows how presidents have both promoted and reacted to changes in public opinion. It also shows how local politicians use set-asides to facilitate exchanges and cooperation with the business elites. The termination of set-aside policies will lead to a negative effect on government efforts to incorporate minorities into the economic mainstream.     

Eight supreme court cases that have changed the face of public administration

This article examines eight recent Supreme Court decisions that have important implications for public administrators. The areas examined include public personnel policy, solid waste management, budgeting and finance, taxation, privacy, and public school education.     

How did Tarasoff affect clinical practice?

The Tarasoff decisions of the California Supreme Court in 1974 and 1976 held that psychotherapists could be held liable for failing to protect the victims of their potentially violent patients. Our survey of psychiatrists, psychologists, and social workers in eight metropolitan areas showed that Californians were more likely to have heard of the case, to believe it required warning the likely victim, and actually to issue warnings in such cases than were psychotherapists from other jurisdictions. Therapists were more willing to take steps to protect victims in 1980 than in 1975, but willingness to warn increased more among Californians than among those in other states. We conclude that although Tarasoff has influenced therapists' attitudes and behavior more in California than elsewhere, the case has also affected psychotherapeutic practice nationally.     

Love and let die

When the very technology that can save lives is only prolonging death, how should a patient decide whether to stop treatment--or help death along? In the last days of a ravaging disease, patients and their families face all but unbearable decisions. Is there a right to die? To commit suicide? To be killed on request? As the private dilemmas multiply, they have become the public province of interest groups, policymakers and the U.S. Supreme Court.     

Drug testing in the public sector: The role of unions

Not surprisingly, unions have traditionally played an active role in employee drug testing. And, although the U.S. Supreme Court upheld the constitutionality of drug testing in two 1989 decisions, unions have continued to wage challenges to urinalysis under the U.S. Constitution and in the labor arena. As this research shows, federal as well as state and local government unions have had some success in challenging the categories of employees targeted for testing, good faith bargaining over drug testing, and due process and equity violations around testing.     

The CROSON decision and the demise of set-ASIDES: a national survey

This research examines the policy response to City of Richmond v. J.A. Croson Company and explores the impact of the decision on minority business enterprises (MBEs) one year after the decision was handed down. This is done by focusing on dollars spent on MBEs and on how localities differ based on region and percent minority population. For most of the cities studied, dollars spent on minority business enterprises had not declined one year after Croson. Various means of securing spending such as the disparity study and race/gender neutral goal progams explain why such is the case. The need for further study is cited in order to determine the impact of multi-year contracts and to see if race and gender neutral goal programs are as effective as “set-asides” in targeting minority as well as non-minority small businesses.     

Prospects For Acquired Rights

A notable feature of European Union Directives is that they are initially somewhat loosely worded, necessitating constant (re)interpretation by the European Court of Justice. This process may itself eventually necessitate the publication of a new version of a Directive, once again creating tensions between member states. Few Directives illustrate this better than that concerned with the 'acquired' rights of employees in the case of business transfers which has recently been revised more than twenty years after its original publication. This article sets out to explore, mainly in the context of the UK: the context and content of the original Directive; its particular relevance for the increasingly popular practice of contracting out; the role played by the European Court of Justice in both clarifying and, arguably, clouding the issues; the process of revising the Directive. It concludes with an assessment of the current state of play.     

Federal sector union liability for breach of duty of fair representation under title vii of the civil rights act: The problem of legal uncertainty

The duty of fair representation (DFR) was initially formulated by the U.S. Supreme Court in the 1940s to protect racial minorities working in the private sector from discrimination by their unions. More recently, the courts have extended the protections afforded by the DFR to state and local government workers. However, the ability of federal employees to invoke this doctrine, specifically under Title VII of the Civil Rights Act as amended, has not yet been resolved. This article examines the case law addressing this issue and argues that federal employee unions, just as unions operating in the private sector and at the state and local levels of government, should be subject to DFR obligations.     

Private provision of public services: Contracting by large local governments

This study examines public service delivery by counties and municipalities of over 500,000 popula tion, through the practice of contracting out with the publicsector. It is based on responses to a question naire sent to purchasing officials in American and Canadian cities, counties, and state governments Results indicate the types of services contracted out the frequency of contracting out, procedures utilized and administrative attitudes. We find that a diverse group of non-professional,non-construction services are being provided by private contractors for these jurisdictions, but the jurisdictions are not providing a majority or even a significant portion of their services in this manner.     

Vote early,vote often? Tele–democracy in European cities

This paper presents the detailed results of an empirical survey on tele–democracy in 31 European cities covering 14 states. It shows that progressive city–administrations in Europe are early adopters of tele–democracy with a diffusion rate of 72 per cent. Analysis of the survey results illustrates that cities are using tele–democracy to improve service access and the quality of services. This research shows that electronic or Internet voting is a priority for only a minority of cities. The paper suggests a typology of tele–democracy and makes wide–ranging policy suggestions. In the debate over whether information and communications technologies will have a beneficial or detrimental effect on the quality and legitimacy of local government, this paper takes an optimistic stance based on the evidence of the survey.     

Public administration,executive power,and constitutional confusion

This article examines the ambiguity in the meaning of executive power in both the text of the U.S. Constitution and in subsequent judicial interpretations. This ambiguity has had a profound impact on the constitutional position of the public administration. In the recent independent counsel case, the U.S. Supreme Court offered a restrictive interpretation of the President's constitutional powers to remove subordinate officers. This new interpretation could lead to increased congressional control over administrative agencies.

The proper place and function of the public administration, unfortunately for the public administration, have been and remain inherently ambiguous because of the longstanding confusion about executive power in the Constitution of the United States. Richard Neustadt captured this ambiguity nicely when he noted that the two great themes that have characterized the American presidency have been “clerkship” and “leadership.”⁽¹⁾ There is no easy formula to bring clerks and leaders together to make them march in lock-step, and yet the President is clearly both. Today we may tend to emphasize his role as leader with imperial pretensions and Nixonian excesses still relatively fresh in our memories, but this is only a question of emphasis. No one denies that the President is a legally accountable officer who must do the bidding of the Congress. This is the clerkship side of the presidency.

Herbert Storing counsels against any effort to cut the Gordian knot and to try to determine once and for all just what it is our President is supposed to be: clerk or leader. “The beginning of wisdom about the American presidency,” Storing maintains, “is to see that it contains both principles and to reflect on their complex and subtle relation.”⁽²⁾ Following Storing's advice, this essay reflects on the inherent ambiguity of the executive power that provides the constitutional foundation of the public administration. First, we examine the text of the Constitution and the meaning of executive power at the time of the founding. Then we study the confusion that the Supreme Court has created in its efforts to draw practical conclusions for presidential personnel management from the constitutional grant of “the executive power” to the President in relation to the removal power. Third, we examine some of the recent problems of executive power that surfaced in Watergate and became salient in the important constitutional debate over the special prosecutors, those most unwelcome intruders into the inner precincts of the Reagan administration.