Minority Business Enterprise Programmes in the United States of America: An Empirical Investigation
| Author | Martin J. Sweet |
| DOI | http://doi.org/10.1111/j.1467-6478.2006.00353.x |
| Date | 01 March 2006 |
| Published date | 01 March 2006 |
JOURNAL OF LAW AND SOCIETY
VOLUME 33, NUMBER 1, MARCH 2006
ISSN: 0263-323X, pp. 160±80
Minority Business Enterprise Programmes in the United
States of America: An Empirical Investigation
Martin J. Sweet*
Affirmative action in the United States has generated no shortage of
academic, legal, and popular analysis. Yet few ever ask, let alone test,
the most fundamental question about affirmative action ± whether it
actually works. This article provides an historical overview of affirma-
tive action in the United States, briefly reviews its legal status, and
then tests the effectiveness of one type of affirmative action in three
American cities between 1981 and 2000. It finds that affirmative action
in government contracting does not significantly increase minority
employment and is statistically insignificant in eradicating discrimi-
nation in contracting.
ORIGINS AND AIMS OF MINORITY BUSINESS ENTERPRISE
PROGRAMMES
Less than a decade after the Supreme Court dismantled the `separate but
equal' framework of American racial apartheid in Brown v. Board of
Education,
1
leading United States politicians began to come to terms with
the inadequacy of formalized constitutional equality. Although the Con-
stitution had provided for equal protection under the law since the middle of
the nineteenth century, political practice and social views lagged far behind
throughout much of America for the next century. Realizing that inaction
resulted in status quo race relations, President Kennedy in 1961 issued
executive order 10925. This mandated that federal contractors `take affirma-
tive action' towards guaranteeing that their employees would not be
discriminated against on the basis of race, colour, creed or national origin.
2
160
ß2006 The Author. Journal Compilation ß2006 Cardiff University Law School. Published by Blackwell Publishing Ltd,
9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
* Honors College, Florida Atlantic University, 5353 Parkside Drive, Jupiter,
Florida 33458, United States of America
msweet4@fau.edu
1 347 US 483 (1954).
2 T. Jacoby, Someone Else's House: America's Unfinished Struggle for Integration
(1998).
Soon thereafter, Congress passed the Civil Rights Act of 1964, expanding
these earlier efforts to encompass private action.
3
At the 1965 Howard University commencement address, President
Johnson aided the transformation of the civil rights vocabulary from
equality of opportunity to equality of result. He said:
You do not take a person who, for years, has been hobbled by chains and
liberate him, bring him to the starting line of a race and then say, `you are free
to compete with all the others' and still justly believe that you have been
completely fair.
4
He continued:
It is not enough just to open the gates of opportunity. All our citizens must
have the ability to walk through those gates . .. We seek . . . not just equality as
a right and a theory, but equality as a fact and as a result.
5
Thus the key principle of equality became transformed into a more
pragmatic measuring device ± equal results. Within two years, President
Johnson issued executive order 11246 establishing the `Philadelphia Plan,'
which required federal contractors, first in Philadelphia and later in 55 other
cities, to utilize minority employees as a precondition for the receipt of
federal contract dollars.
Under the guidance of President Nixon, the United States first instituted a
requirement on federal contractors to have affirmative action plans con-
taining both minority and female hiring goals. Thus by the time President
Carter came to office in 1977, these programmes that were at their core
designed to remedy inequities against African-Americans ironically covered
a majority of the United States population.
6
Competition between and among
disadvantaged groups would prove to be one of the legacies of American
affirmative action.
7
Federal efforts toward eradicating racial disparities
began to take hold in state and local governments as well. Towards the end
of the 1980s, more than 200 separate state and local government pro-
grammes existed nationwide, on top of over 100 similar federal pro-
grammes.
8
Admittedly, these programmes were often limited to contracting.
But even narrow programmes were far-reaching. It is estimated that
approximately 25 per cent of the entire American workforce is employed by
161
3 H. Graham, Collision Course: The Strange Convergence of Affirmative Action and
Immigration Policy in America (2002).
4 T. Edsall and M. Edsall, Chain Reaction: The Impact of Race, Rights, and Taxes on
American Politics (1991).
5 Jacoby, op. cit., n. 1.
6 T. Bates and D. Williams, `Do Preferential Procurement Programmes Benefit
Minority Business?' (1996) 86 Am. Economic Rev. 294.
7 Graham, op. cit., n. 3.
8 G. La Noue, `The Impact of Croson on Equal Protection Law and Policy' (1997) 61
Albany Law Rev. 1.
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