Unaffirmative action

in Austin - John Goode lost his concession stand contract for events at city-owned venues in Austin, Texas, because that city's affirmative-action program is racist, he claims in a lawsuit filed last year. This is hardly unusual. Political conservatives have been crying foul since affirmative-action programs arrived two decades ago. The twist here is that Mr. Goode is black. He claims that a city contractor dumped his Mr. Bones Barbecue because he refused to certify it as a "minority business enterprise." "This is the only case in the country that I am aware of in which a black person is saying, 'I don't want a racial preference, and I'm challenging giving that preference to other people,'" says Mr. Goode's lawyer, Gary Gerrard. Austin adopted an affirmative-action program in 1987 and updated it in 1996. Under this program, the city expected its contractors to make "good faith efforts" to meet hiring "goals" for subcontractors certified by the city to be at least 51 percent owned by a member of a minority group or a woman. Mr. Goode began subcontracting to Volume Service, Austin's concessions contractor, in 1989. In 1993 Mr. Goode declined to be certified by the city because of privacy concerns. All the detailed financial information he was required to submit in the certification process became public record. "No white contractors are expected to do this," he points out. In 1995 Fine Host Corporation took over the concessions contract from Volume Service. In August of 1996, facing a quota of 25 percent minority subcontractors, Fine Host canned Mr. Bones Barbecue and hired a certified minority operator. "It seems that Mr. Goode was penalized for not accepting the 'benefits' of affirmative action," says Marc Levin of the Campaign for a Colorblind America. Mr. Bones Barbecue folded soon after and Mr. Goode, 53, now works for an Austin manufacturer. He also lost his house and now lives with his aunt. In March of 1998 Mr. Goode sued the city and Fine Host. The case was dismissed last December on the grounds that he "lacked standing," having suffered "no real injury." Mr. Goode had the same opportunity as other uncertified businesses to compete for a contract with Fine Host, decided U.S. District Judge Sam Sparks. That's not the point, according to Mr. Goode, who is appealing. "The issue is not whether he can compete with other white contractors," says Mr. Gerrard. "The issue is whether he can compete on an equal footing with all other contractors." Fine Host told a Texas Senate inquiry that Mr. Goode was released for poor performance, and city lawyers have argued in court that it never requested nor required Fine Host to drop Mr. Bones Barbecue. (Neither the city nor Fine Host has commented to reporters on the case.) But clearly, says Mr. Gerard, Austin's affirmative-action program pressured Fine Host into terminating its contract with Mr. Goode. He argues further in his appeal brief that Austin's affirmative-action program fails to meet the Supreme Court's standards set for such regulations in the 1980s. First, the city has never provided "strong evidence" that racial discrimination was a factor in awarding food-vending contracts (although a 1992 study alleged racism affected the awarding of contracts in construction and other areas). Second, Austin's policy is not "narrowly tailored"; it applies to all minorities, from Asian Indians to Eskimos, even though there is no evidence that Austin officials discriminated against these people. If Mr. Goode wins, says Mr. Gerrard, this case will be the latest in a decade-long series of precedents defining ever tighter restrictions on how affirmative-action programs can operate. A decision from the 5th Circuit Court on Mr. Goode's appeal is expected early next year. "A lot of black business people have expressed their support to me, but they can't do so publicly because they might have a position or a contract through affirmative action, even though they don't agree with it," Mr. Goode told WORLD. "But someday, affirmative action will come back to haunt the black community. "To me, affirmative action is economic and intellectual slavery," says the businessman, whose great-grandparents bought land in Texas in 1865, the year the Civil War ended. "It keeps the black man tied to the idea that he is not capable enough to accomplish anything without white people holding his hand. Let me make it or fail on my own. Why should I depend on some government program to make my business go? That's surely not the American way."