Before Washington and Nashville dismantle programs designed to expand opportunity, they should answer a fundamental question: Why did qualified minority businesses in Shelby County receive so much less public work than their availability warranted?
For me, this debate is grounded in decades of public service. During my 44 years on the Shelby County Commission, we worked to open government contracting to people who had too often been excluded. Taxpayers deserved quality work at a fair price. Qualified businesses deserved a fair opportunity to compete.
Our “lowest and best” approach recognized that public responsibility extended beyond the lowest number on a bid sheet. We sought assurances that minority- and women-owned businesses would participate,
including through subcontracting. A business unable to undertake an entire county project could still supply materials, perform specialized work and build the experience needed to compete for larger contracts.
That was not a handout. It was an investment in competition and opportunity.
The evidence supporting those efforts deserves renewed attention.
In February 2016, Mason Tillman Associates, an Oakland, California, consulting firm, presented findings examining Shelby County purchasing from 2012 through 2014. White male-owned firms received approximately 88% of the $190.5 million in contract dollars examined. Black-owned firms received approximately 5.8%.
The construction findings were especially troubling. Black-owned firms received about 5% of the work, compared with approximately 31% suggested by their availability. The study also identified shortcomings in minority subcontracting participation.
Those comparisons examined the availability of businesses to perform the work. They went beyond simply comparing contract awards with the racial composition of our population.
And the problem did not disappear.
After a 2019 lawsuit challenging the county’s minority- and women-owned business program ended in a 2020 settlement, Shelby County commissioned Griffin & Strong, an Atlanta law and public-policy firm, to conduct another disparity study.
Presented in June 2022, it examined contracting during 2016 through 2020. The firm reported underutilization of Black-owned, Asian American-owned, Native American-owned and nonminority women-owned businesses in prime contracting. It concluded that the evidence supported a race- and gender-conscious contracting program.
Persistent Gap
Two independent studies, years apart, exposed a persistent gap between opportunity promised and opportunity delivered.
President Donald Trump’s executive actions against DEI and Gov. Bill Lee’s signing of Tennessee’s Dismantling DEI Departments Act should be evaluated against that record. Officials describe these measures as protecting merit and equal treatment. Those principles deserve respect. But so does evidence that qualified businesses have lacked equal access to public opportunity.
Government cannot champion fair competition while ignoring evidence that capable competitors are being shut out.
The studies do not automatically validate every DEI policy. Nor do they, standing alone, establish that a federal directive or state statute is unconstitutional. Race-conscious remedies face demanding legal requirements, and any program must be carefully designed around documented conditions.
But these studies provide a factual foundation that local government should preserve, update and use when evaluating legal challenges to restrictions that obstruct lawful remedies.
Memphis and Shelby County officials should direct their attorneys to identify precisely which federal and state measures threaten legitimate local efforts, assess the strongest available claims and pursue litigation where the facts and law support it. They should work with affected businesses whose injuries can be documented.
Transparent Bidding
Meanwhile, local government should continue every lawful means of expanding access: transparent bidding, meaningful outreach, prompt payment, manageable contract sizes and enforcement of subcontracting commitments.
In a community with a Black majority, economic exclusion reaches far beyond a contract award. It affects jobs, families, neighborhood stability and the tax base. Our elected officials owe residents more than silence and surrender.
The obligation is clear: defend equal opportunity with evidence, sound policy and, when necessary, legal action. Shelby County has already paid to uncover the problem. Now its leaders must act on what the evidence shows—not allow those findings to be buried as opportunity is rolled back.
Walter L. Bailey Jr. is a Memphis attorney and former Shelby County commissioner. .
This article originally appeared on Memphis Commercial Appeal: Making a case for equity in awarding public contracts | Opinion
