By Nate Raymond
July 28 (Reuters) – A federal judge on Tuesday blocked the city of Houston, Texas, from enforcing race-conscious policies governing a program that sets aside certain public contracts for minority-owned businesses after finding they were unconstitutional.
U.S. District Judge David Hittner in Houston said his ruling was the first ever to apply the U.S. Supreme Court’s landmark 2023 ruling against affirmative action in higher education to race-conscious municipal public contracting programs like Houston’s, which he said could no longer operate as structured.
The judge, who was appointed by Republican President Ronald Reagan, said that under that precedent, the city’s policies could only be sustained if it could put forward evidence it was considering race in order to remedy specific, past discrimination in its contracting practices, which it could not do.
“The public interest favors a permanent injunction because there is no public interest in permitting the government to continue enforcing an unconstitutional race-based policy,” he wrote.
The ruling marked a victory for Landscape Consultants of Texas and Metropolitan Landscape Management, two landscaping companies owned by a white married couple, Jerry and Theresa Thompson, who filed the lawsuit soon after the Supreme Court handed down its 2023 decision.
“Equal protection means equal protection for everyone, not preferential treatment for some,” Erin Wilcox, a lawyer for the plaintiffs at the libertarian legal group Pacific Legal Foundation, said in a statement. “The Fourteenth Amendment guarantees every business owner the same shot at a government contract, regardless of race.”
Houston City Attorney Arturo Michel in a statement said the city is evaluating a potential appeal.
“The city will abide by the court’s decision regarding existing contracts and recently awarded contracts pending any further court order,” Michel said.
The ruling came in a lawsuit filed after the Supreme Court’s 6-3 conservative majority in June 2023 struck down race-conscious college admissions policies in two cases involving Harvard University and the University of North Carolina.
The lawsuit challenged policies the city of Houston used to govern its Minority, Women, and Small Business Enterprise Program, through which the city set annual numerical goals for awarding different types of contracts to minority-owned businesses.
They also challenged a similar contracting program operated by the city’s Midtown Management District. The plaintiffs claimed the policies violated their equal protection rights under the U.S. Constitution’s Fourteenth Amendment by freezing them out of some contracts due to their race.
Following a non-jury trial, Hittner agreed, saying the Supreme Court’s decision made clear the government may only treat people differently based on race to remediate specific instances of past unlawful discrimination, which the city provided no evidence to support.
While the city contended the Supreme Court’s decision only applied to higher education, Hittner said the justices had recently extended its reach by applying its framework in its recent April ruling gutting a key provision of the Voting Rights Act in the context of evaluating racial gerrymandering.
“Houston is required to identify concrete, particularized discrimination and demonstrate that its use of race is necessary to remedy that discrimination,” Hittner said. “Houston has not done so.”
The case is Landscape Consultants of Texas Inc v. City of Houston, U.S. District Court for the Southern District of Texas, No. 4:23-cv-03516.
For the plaintiffs: Erin Wilcox of the Pacific Legal Foundation
For the city: Ben Stephens of Husch Blackwell
Read more:
Houston moves to toss some claims in lawsuit over minority contracting
(Reporting by Nate Raymond in Boston)
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