MoDOT vs St. Louis on Contractor Diversity Program Legality
As I have been reporting, the city’s decision to abandon its MWBE contractor diversity program raises important questions. Most of these are about how the decision was made and what the program’s end means for the future of a region that has spent so much time in discussions centered around equity. Monday’s reporting on documents obtained by public records request answers some of the questions raised, but many more remain.
The most basic question is whether the mayor has the legal authority to unilaterally halt the program. The ordinance enacting the program only appears to allow the courts to alter it. It is important to remember that the city’s MWBE program was instituted and run by numerous mayors by way of executive orders. When the Board of Aldermen decided to codify the program as an ordinance, the ordinance was passed to make the program permanent and ward off a future mayor’s decisions to weaken it.
On the other hand, interim City Counselor Michael Garvin says that Mayor Spencer is definitely within her power to suspend the program. Mr. Garvin’s response to our questions specifically mentioned the city’s long-defunct red light ordinance as an example of a law that had been suspended, due to being found illegal. The red light ordinance’s suspension was the result of a Missouri Supreme Court decision, not a memo from the Department of Justice. This is a key difference. As the city’s MWBE ordinance has not been found unlawful by any court of law, it is extremely unclear what Mr. Garvin is alluding to when stating the program has been found to be unlawful. Attorney General Bondi’s memorandum is not a legal finding. Neither is the letter sent by the Department of Transportation. All letters that have been received are warnings that the Trump administration considers ordinances like the MWBE program as potentially violating the law and threatening potential repercussions in the future. If the federal government has made more explicit threats, the Spencer administration has chosen not to share them with the media.
As has been noted by others, numerous jurisdictions have chosen to defend their laws. Like St. Louis’s ordinance, these laws were written to comply with a longstanding Supreme Court precedent (Richmond v. Croson), which found that strict quotas are illegal, while setting diversity goals is not. Many more are passively waiting out the legal process to see how courts rule on cases brought by other governments. St. Louis obviously chose a different pathway. We joined Orlando, FL, and Fort Worth, TX, as some of the first notable municipalities to suspend their contractor diversity programs.
Interestingly, you don’t have to look very far to find an example of a GOP-led government that is continuing its contractor and supplier diversity program. The Missouri Department of Transportation (MoDOT) is currently continuing its Disadvantaged Business Enterprise Program that functions similarly to the city’s now-suspended program. How similar? MoDOT is part of the Missouri Regional Certification Committee, which is the Unified Certification Program for the State of Missouri. “Under the Memorandum of Understanding, the MRCC members agree that any and all firms certified as a DBE by any MRCC member shall be recognized as being certified in accordance with 49 CFR Part 26 and such certification will be accepted by all MRCC members,” states MoDOT’s website.
While SLDC stopped accepting certification applications in July, MoDOT has continued to operate its program. It even has an upcoming event on the calendar for businesses to learn more about the program. While not identical, the statement on MoDOT’s website indicates a significant level of similarity and equivalency between the programs. So does the fact that St. Louis County’s MWBE program accepts certification from either MoDOT’s DBE program or the city’s now-suspended program.
Our state government is overwhelmingly dominated by Republicans, and the state went to Trump by a large margin. If these programs were illegal, then why hasn’t the state stopped its own? Wouldn’t it be expected that our ultra-conservative state government would be quick to end the DBE program? If even Republicans are hesitating on ending these kinds of programs, why did Mayor Spencer take such decisive action?
This is not to say that everything should be laid at the mayor’s feet. The information raises other questions. One such is why, given the evidence of the mayor’s shaky legal authority, aren’t the aldermen doing anything to force her to change course? Instead, the city’s legislators seem to be passively ceding power. That seems odd, given the board members’ oft-professed concern for building a more equitable St. Louis. Their silence speaks volumes, as the saying goes.
In our highly diverse city that votes overwhelmingly Democratic, voters deserve answers to all of these questions.
