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Judge: City biased vs. white males

By Susan Greene
Denver Post Staff Writer

March 8 - Denver systematically has discriminated against white male contractors under the city's 10-year-old affirmative-action policy, a federal judge ruled Tuesday.

The decision is a blow for Mayor Wellington Webb, whose administration has spent eight years and nearly $2 million in tax dollars defending its ordinances promoting minority- and female-owned businesses.

"This is near and dear to the administration," said Scott Detamore, the lawyer for the plaintiffs, Concrete Works of Colorado Inc. "I would imagine that, while a brave face is being put on it, this is a very serious, a very personal loss."

Webb, a fervent supporter of affirmative action, said in a prepared statement that he is "disappointed" by the ruling but didn't indicate whether he'll appeal it.

He added that the decision may have a "chilling effect" on qualified female- and minority-owned firms competing to construct a new city office building, renovate the Denver Zoo, and expand the Colorado Convention Center and the Denver Art Museum.

"This is a sad day for equal opportunity," Webb said.

U.S. District Judge Richard Matsch ordered the city to immediately stop enforcing its law - meaning it no longer can require general contractors to consider race or gender in awarding subcontracts.

The Brighton-based Concrete Works sued Denver in 1992 over ordinances calling for general contractors hired by the city to make "good-faith" efforts to complete at least 16 percent of their subcontracting work using minority-owned businesses, and at least 12 percent using female-owned firms. Webb's aides said those standards - which were lowered to 10 percent in both categories in 1998 - were flexible goals, not quotas, intended to remedy perceived race and gender bias in construction.

Company president Marc Lenert claimed the requirements caused him to lose four city construction contracts, even though he was the lowest bidder. Lenert said the policy gave minorities and women unfair advantages over their white male competitors and denied his company equal protection under the 14th Amendment. Further, he argued, it's not the city's role to correct discrimination in the construction industry or in society.

"I like to choose a contractor on the quality of his work, not the color of his skin," Lenert said. "We shouldn't have to play the games that Denver says we should play."

The case meandered through the courts for eight years until it reached Matsch. He heard the case for three weeks last year and issued his 79-page opinion Tuesday morning.

He ruled that the city couldn't prove a pattern of discrimination in the contracting industry and therefore couldn't justify its policy. Further, he blasted the city's evidence about discrimination - studies for which it paid top dollar.

"The methodology was not designed to answer the relevant questions, the collection of data was flawed, important variables were not accounted for in the analyses and the conclusions were based on unreasonable assumptions," he wrote. "Taken altogether, the city has failed to make the strong showing necessary to support the race- and gender-based allocation of business opportunities mandated by these three ordinances." His decision comes as judges nationwide are cracking down on similar affirmative-action policies.

Courts have shot down ordinances in Philadelphia, Miami's Dade County, Columbus, Baltimore, Florida and Minnesota.

Greg Eurich, a Holland & Hart attorney specializing in affirmative-action cases, said Tuesday's ruling came "as little surprise."

"Plans that try to solve society's historical discrimination are difficult to sustain," he said.

Eurich and other legal experts expect Matsch's decision to set a legal precedent for cities throughout Colorado, but they note that Denver had the state's most aggressive affirmative-action policy.

Nationwide, Detamore added, the ruling will "reaffirm precedent that's already been established."

"The Constitution was vindicated," he added.

Detamore works for the Rocky Mountain States Legal Foundation, a conservative legal group that successfully represented a Colorado Springs businessman before the U.S. Supreme Court in his 1995 reverse-discrimination suit against that city.

He tried the Denver case with part-time help from another attorney. The city had six lawyers in trial, plus more attorneys working behind the scenes. The city also hired a battalion of high-priced consultants and expert witnesses who charged up to $350 an hour.

One consultant, Richard Doby, charged the city $14.58 each time he left a phone message regarding the case, city records show.

Detamore aims to recover "hundreds of thousands of dollars" in legal fees, plus at least $200,000 in other costs.

Two city council members expressed concern Tuesday that Webb might add to the city's costs by appealing Matsch's decision.

"It's a major waste of city funds," said Councilman Ted Hackworth, chairman of the finance committee.

"The case was a loser four years ago, it's a loser today and it'll keep on being a loser," said Councilman Ed Thomas, who called on Webb to "retool our contracting policies so they're fair for everyone."

Political experts said Matsch's ruling will sting Webb politically, especially because he has made affirmative action a centerpiece of his nine-year administration.

"Basically, the judge has said the mayor's main issue is illegal and misguided," said Denver political consultant Eric Sondermann. "His harsh language calls into question the city's rationale and even their good faith."

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