Daisy Espinoza/Houston Public Media
Pictured is Houston City Hall.
The City of Houston has asked a federal court to reconsider its ruling that found the city’s minority-owned business program is unconstitutional.
The request comes after U.S. Judge David Hittner ruled last month that part of the city’s Minority, Women and Small Business Enterprise Program, which was created in 1984, was unconstitutional because it violated the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. Under the program, the city has required some municipal government contracts to be awarded to minority-owned businesses.
The filing by the city Monday in the U.S. District Court for the Southern District of Texas was a “motion to alter or amend the judgment” made by Hittner and not an appeal to the 5th U.S. Circuit Court of Appeals.
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In the motion, Houston City Attorney Arturo Michel said he disagrees with the judge’s ruling and claimed the judge made a “clear error of law” when interpreting court precedent. The city argues that, because the program utilizes “racial classification,” it is subject to strict judicial scrutiny, but the plaintiffs have not proven that the city has failed to meet that scrutiny.
Michel also cites a 2022 study conducted by the city that found a “significant statistical disparity” between the number of qualified minority contractors and the number of such contractors hired by the city.
The city also argues that since the program is attempting to address a real disparity — allegedly proven by its own previous studies — “the burden ‘shifts back to the plaintiff[s] to prove unconstitutionality.'”
“Given plaintiffs’ failure to provide any credible and particularized evidence that could rebut Houston’s MGT Study, this court should have found that Houston has carried its burden to show a compelling interest in continued administration of the racial component of its MWSBE program,” Michel wrote in the appeal.
The lawsuit against the city’s program was filed in 2023 on behalf of Landscape Consultants of Texas and Metropolitan Landscape Management, which are owned by Jerry and Theresa Thompson, a white couple. The Thompsons argue that the program has negatively impacted their companies and violated the Equal Protection Clause of the Fourteenth Amendment.
They filed their lawsuit in the aftermath of a U.S. Supreme Court ruling that struck down affirmative action admissions policies at Harvard University and the University of North Carolina, which along with colleges all over the country had used them to prevent racial discrimination and ensure their campuses include Black, Hispanic and other minority students. Texas legislators also have passed laws in recent years that ban diversity, equity and inclusion initiatives at public schools in the state.
In a statement to Houston Public Media on Tuesday, the Thompsons’ attorney, Erin Wilcox with the nonprofit Pacific Legal Foundation, said the federal court in Houston made its decision clear.
“A federal court has made clear that the government cannot treat people differently based on race when awarding public contracts,” Wilcox said. “Houston should respect that ruling rather than trying to preserve a program that does exactly what the law forbids. Public contracting should be based on fair, race-neutral standards — not racial preferences.”
Writing his judgment last month, Hittner said the program provided “preferential treatment.”