Appeals Court Upholds Denver Affirmative Action Plan Businesses owned by women and minorities won a round in Denver, but lost one in Boston. A federal appeals court has upheld the city of Denver’s affirmative action program that steered construction contracts to minority and woman-owned companies. It is the first time an appeals court has upheld any local government program that used racial preferences to remedy past discrimination, said Baltimore attorney Franklin Lee, former chief counsel of the Minority Business Enterprise Legal Defense and Education Fund. “A victory on the merits, at last,” he added in an interview. “Denver has shown that it has a compelling interest in remedying racial discrimination in the Denver construction industry and that it has an important governmental interest in remedying discrimination,” the three-judge panel of the Tenth Circuit Court of Appeals said in its Feb. 10 ruling. An attorney for Mountain States Legal Foundation, which is fighting the program, told the Denver Post the decision will be appealed to the U.S. Supreme Court. “The Tenth Circuit’s ruling conflicts not only with the rulings of the Supreme Court, but also with the rulings of every other federal appellate court that has reviewed the constitutionality of racial preferences by cities,” Mountain States president William Perry Pendley said in a statement. The city ordinance gave a preference to general contractors who awarded subcontracts to minority-owned and women-owned businesses. A white-owned construction firm filed suit, claiming that the ordinance fostered reverse discrimination. The cities of Las Vegas, Chicago, Minneapolis, San Francisco and others filed briefs with the court supporting the Denver program. Lee said a key element of the ruling is the court’s acceptance of Denver’s “disparity studies,” using statistical evidence and witness testimony to prove that there had been racial discrimination in construction contracting. Such proof of discrimination is required under U.S. Supreme Court rulings in the 1989 Croson case and the 1995 Adarand case, which limited affirmative action. In Boston, Mayor Thomas Menino has abolished an affirmative action contracting program that gave preferences to minority and women-owned businesses. Menino said the Minority and Women Business Enterprise program was likely to be overturned in court, as similar programs in other cities had been. A spokeswoman for the mayor said he is not reconsidering the issue in light of the Denver decision. He issued an executive order giving contracting preferences to “small and local-owned businesses.” The 25-year-old affirmative action program set aside 15% of Boston’s city contracts for African American-owned firms and 5% for women-owned businesses.