A federal judge in Houston has barred the city from enforcing race-conscious provisions of its public contracting program, finding the policies unconstitutional and unsupportable under recent U.S. Supreme Court decisions.
U.S. District Judge David Hittner issued the ruling on Tuesday, concluding that Houston could not maintain the structure of its Minority, Women, and Small Business Enterprise Program - which sets annual numerical goals for awarding certain contracts to minority-owned firms - without offering evidence that the race-conscious measures were narrowly tailored to remedy identified past discrimination in the city's contracting practices.
Hittner, a jurist appointed by Republican President Ronald Reagan, said the decision is the first application of the Supreme Court's 2023 ruling on affirmative action in higher education to municipal public contracting programs of this type. Under the Supreme Court framework, government entities may treat people differently by race only to redress specific, past unlawful discrimination, and the judge concluded Houston had not met that burden.
"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," Hittner wrote.
Victors in the litigation were two landscaping businesses - Landscape Consultants of Texas and Metropolitan Landscape Management - owned by a married white couple, Jerry and Theresa Thompson. The firms filed suit shortly after the Supreme Court's June 2023 ruling that struck down race-conscious college admissions policies at Harvard University and the University of North Carolina.
The plaintiffs argued that Houston's program and a similar program run by the city's Midtown Management District effectively excluded them from competing for certain government contracts because of their race, violating their rights under the Fourteenth Amendment's equal protection clause. After a non-jury trial, Hittner agreed with that claim, finding the city did not produce evidence of specific discriminatory acts that would justify continued consideration of race in its contracting goals.
Erin Wilcox, representing the plaintiffs for the Pacific Legal Foundation, characterized the ruling as an affirmation of equal protection principles. "Equal protection means equal protection for everyone, not preferential treatment for some," Wilcox said in a statement. "The Fourteenth Amendment guarantees every business owner the same shot at a government contract, regardless of race."
A lawyer for the city did not immediately reply to a request for comment on the ruling.
The lawsuit challenged the numerical goals Houston set each year for awarding different types of contracts to minority-owned firms, as well as the parallel contracting program administered by the Midtown Management District. The litigation followed the Supreme Court's 6-3 conservative majority decision in June 2023 that invalidated race-conscious admissions policies at two universities.
In addressing the city's argument that the Supreme Court's decision applied only to higher education, Hittner referenced the high court's subsequent April ruling that applied the same analytical framework in evaluating claims related to the Voting Rights Act and racial gerrymandering. He wrote that Houston must therefore identify "concrete, particularized discrimination and demonstrate that its use of race is necessary to remedy that discrimination," a showing the city did not make.
Hittner's opinion concluded that without evidence tying the program's race-conscious measures to remedial aims for past unlawful discrimination, the city could not lawfully continue enforcing the contested elements of its contracting policies.
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. Counsel of record listed in the filing includes Erin Wilcox for the plaintiffs and Ben Stephens of Husch Blackwell for the city.
This ruling removes from immediate effect the race-conscious mechanisms of Houston's minority contracting program, subject to any further appeals or legal developments. It marks a notable application of the Supreme Court's affirmative action jurisprudence to the realm of municipal procurement.