Vernetta Mitchell, MGT project director, answers audience questions at the Pittsburgh Regional Disparity Study kickoff meeting on Wednesday, April 9, 2025, at Alloy 26 in North Side. (Photo by Anastasia Busby/PublicSource)
Mayor Ed Gainey, backed by Allegheny County, may pay more than $1 million to a consultant to defend equity-focused contracting.
“PublicSource is an independent nonprofit newsroom serving the Pittsburgh region. Sign up for our free newsletters.”
Pittsburgh, Allegheny County and allied agencies are embarking on a disparity study to justify race-conscious government contracting, but the legal foundations for such programs are being narrowed by federal policies and challenged in courts across the country.
Mayor Ed Gainey’s administration began efforts in 2023 to conduct a disparity study, an analysis of government contracts. At the time, the U.S. Supreme Court’s decision to ban race-based affirmative action in higher education put other sectors on notice and led to questions of whether cities can legally consider race in awarding contracts. The mayor’s efforts eventually led to the Pittsburgh Regional Disparity Study Consortium, made up of city agencies along with the county.
The city has awarded a contract to Florida-based consulting company MGT Impact Solutions. City Council authorized spending up to $1.15 million with MGT, contemplating that the cost be shared between the city, county and five city-related agencies. The consultant’s charge is to check if minority-owned and woman-owned businesses have equal opportunities “to participate in local government and other contracts” in the area, according to a request for proposals on this initiative.
Pittsburgh currently supports its diverse contracting efforts through a disparity study dating back to 1988.
On a recent April morning, city officials and MGT consultants met with dozens of entrepreneurs on the North Side, inviting them to participate in the study.
“This is a bold and critical step to gaining an equitable and thriving economy for all,” Gainey said during the meeting, arguing that a disparity study would help the city implement changes to the procurement process and ultimately grow the population.
“The more diverse city we have, the better economy we have,” Gainey said. “The more people will want to move and be here. The more people we can show we’re open for business without the same old gatekeepers to determine who gets procurement opportunities, the more we grow the population of the city.”
“The more diversity we have, I think the greater the city we will be,” Gainey added.
But corporations and conservative litigators are challenging the constitutionality of governments’ race-based policies, and courts are ruling that some programs favoring minority-owned, women-owned and other disadvantaged firms amount to discrimination.
Gainey nodded to these issues during the kickoff meeting: “This new study is critical given the changing landscape and heightened scrutiny of equity and inclusion.”
Contracting programs started in federal agencies
To favor minority and disadvantaged businesses, governments usually must first compile extensive evidence through a data-heavy disparity study to establish a link between race-conscious measures and a relatively recent history of discrimination.
Racial, ethnic and gender preferences have existed in federal contracting for about 50 years, according to George La Noue, an emeritus professor of political science and public policy at the University of Maryland Baltimore County. Similar programs have been adopted by states, counties and cities across the country.
La Noue, who researches public procurement and constitutional law, noted that some programs create annual goals while others attach race-conscious targets to specific projects.
La Noue noted that congressionally mandated programs for disadvantaged businesses affect federal expenditures nationwide. The concept of supporting minority- and women-owned businesses is attached more to local government bodies, according to La Noue, and the use of these terms is “much more common in blue than in red jurisdictions.”
These programs rely on a list created by the Small Business Act that identifies groups eligible for preference.
There are no comprehensive studies of the hundreds of these programs across the country which justify “diminishing or even excluding … firms owned by white men or stockholders,” La Noue wrote.
La Noue argued that these programs go against the equal protection language contained in the 14th Amendment and the Civil Rights Act’s Title VI prohibition against all racial discrimination in federal expenditures.
But Sameer Bawa, managing director at Denver-based BBC Research & Consulting, pushed back against this argument, noting that federal laws are still in place to support race-conscious contracting. Bawa’s company completed a disparity study last year for the Commonwealth of Pennsylvania.
“None of the laws around these things have changed,” Bawa said. “The same constitutional standards on race and gender have been in place since 1989.” None of the court cases, he said, has changed the underlying law.
“People have been talking about the sky falling for the last two to three years, and it hasn’t happened yet and we have to wait for concrete information before preemptively obeying things that don’t exist yet.”
Race-focused programs may not ‘survive anywhere’
Courts, including the Supreme Court, are scrutinizing race-conscious contracting programs, and in many cases, those programs are losing legal protection.
“The Supreme Court is calling the racial classification imprecise, underinclusive,” said Dan Morenoff, who leads the conservative American Civil Rights Project in Texas. “It referred to the system as incoherent and irrational. … If the Supreme Court is calling racial classification systems irrational, then any program using it is unlikely to survive scrutiny.”
La Noue said the underlying legal framing of giving preference to minority and disadvantaged businesses is being challenged in several court cases.
He noted one case in Texas in which Houston and Harris County are being sued for minority contracting requirements that a company argues are “arbitrary and unconstitutional.”
Complaints against preferential programs in New York state and Wisconsin threaten such programs around the country, La Noue said.
“If those court cases come down as I think they probably will and if the federal government acts on complaints of [Disadvantaged Business Enterprise] programs in those two states, it seems unlikely race-preferential programs would survive anywhere,” La Noue said.
If that happens, disparity studies still have value because they identify hurdles contractors may face in gaining contracts.
“None of these cases would deter a government in engaging in race-neutral programs,” La Noue said. “If there’s an underlying problem, government can move toward race-neutral solutions. It’s in the taxpayers’ interest to have procurement processes that are open and competitive at low cost regardless of if the vendor has a particular racial background.”
For example, La Noue said, small businesses may not be able to meet high bond requirements. He also mentioned that in the procurement process phase of a project, “it could be difficult for a small business to access because larger corporations have more established connections.”
Bawa agreed that race-neutral programs are valuable but he argued that the two modes can coexist.
“Race- and gender-neutral measures shouldn’t be viewed as replacing anything. These are always supposed to be part of the program. Legal standards require you maximize the use of these measures,” Bawa said, adding that “it would be foolhardy not to be proactive and do these programs better.”
He said that now “is a good time to take a serious assessment of what’s working and not working in these programs.”
Race-neutral approaches to be in Pittsburgh mix
The company hired by Pittsburgh to conduct a disparity study similarly noted the concept of race-neutral policies.
“Case law has been very clear — you should have race- and gender-neutral policies in there, too, to cover yourself,” said Vernetta Mitchell, a project director with MGT.
But Mitchell also noted that there is a separation between federal and state power. “Federal changes are not directly impacting the state and local level from doing their things. Until states begin to make changes, that’s when you have to start thinking about implementing policies and procedures.”
MGT plans on assessing the relationship between local municipal governments and businesses seeking to take on government contracts.
With heightened scrutiny of race-based initiatives, Morenoff said governments must limit scope to evidence-based solutions.
“The theory of disparity studies is showing that there was market evidence to suggest intentional discrimination,” Morenoff said. “Show your work and get to the point of how and against whom [discrimination occurred] and limit your remedy to what you’ve shown. It has to be narrowly tailored. You’ve shown a compelling purpose and you as a municipality are remedying the harms of recent discrimination.”
Bawa said the current challenges and climate should be used to strengthen the disparity study process — not to abandon it
“There’s a lot of fear and anxiety and that’s justified but I’m a little impatient with some individuals in the industry and groups that are giving up before realizing there is a path forward,” Bawa said. “We should be anxious but we should use that anxiety to make these programs better and stronger.”
He said that Pittsburgh “moving forward with the disparity study is a great sign.”
Eric Jankiewicz is PublicSource’s economic development reporter, and can be reached at ericj@publicsource.org or on Twitter @ericjankiewicz.
This story was fact-checked by Rich Lord.
This article first appeared on PublicSource and is republished here under a Creative Commons Attribution-NoDerivatives 4.0 International License.
About Post Author
