A federal judge declared a longstanding program in Houston that requires a percentage of Harris County contracts to be awarded to women- or minority-owned businesses unconstitutional during a July 28 trial.
U.S. District Judge David Hittner, the ruling judge on the case, said the program violates the Equal Protection Clause of the 14th Amendment.
Explained
The city's Minority and Women-Owned Business Enterprise (MWBE) program sets intentional percentage targets for certified minority- and women-owned businesses to participate in municipal construction, professional services and goods contracts. The program was launched in 1984 under the city's Office of Business Opportunity and required the minority or female business owner to possess at least 51% ownership, management and control of the enterprise, according to the city's website.
However, a white couple from Spring filed a lawsuit in 2023 against the city after stating that they had to pay $143,000 to a minority-owned competitor to finish part of the work on their five-year, $1.3 million contract with the city, per prior reporting.
The couple, Gerald and Theresa Thompson, who own Landscape Consultants of Texas and Metropolitan Landscape Management, stated that the program violates the Equal Protection Clause of the 14th Amendment of the Constitution. After a three-year back-and-forth trial, Hittner voted in favor of the couple.
Something to note
The Equal Protection Clause states that no state shall deny any person equal protection of the laws. According to the National Archives, the clause essentially requires states to treat similarly situated individuals in a similar manner and serves as the primary constitutional basis for protecting civil rights against unfair discrimination.
Those in favor
Hittner's ruling now blocks the city from using race-conscious preferences in public contracts.
Joshua Thompson, director of equality and opportunity litigation at the nonprofit Pacific Legal Foundation, who represented the Thompsons, said the ruling reaffirms that public contracts should be awarded based on merit, not race.
"The Constitution guarantees equal treatment under the law, including when governments award public contracts," he said in an emailed statement.
Those opposed
City Council members and Mayor John Whitmire expressed their disappointment with the court ruling during a July 29 meeting.
"For four decades this program has been in place for us to represent the city's commitment to qualified businesses having meaningful opportunities to compete for these contracts," Mayor Pro-Tem Martha Castex-Tatum said. "These are business owners who are entrepreneurs. They are creating jobs. They are investing in our neighborhoods. They really are making an impact to strengthening Houston's economy. We cannot let this moment become the end of our commitment to economic inclusion."
Council member Edward Pollard said the program was put in place in the 1980s so small and minority businesses would have the opportunity to participate in contracts because there were business owners who were not getting a fair opportunity.
"It's interesting that the arguments that are being made are saying that the program is discriminatory against those who are shown on every disparity study that has come out that minorities are still not getting their fair slice of the pie, especially Black people," he said. "Progress still needs to be made, and as we're trying to make progress, this ruling comes down. So I think that now puts us in a place where we have to be creative in our approach in how to ensure that as the most diverse city in America, we still find ways to give opportunity to the broad cross-section of our community so that everyone has an opportunity to participate."
Before you go
In fiscal year 2025-26, Houston awarded approximately $1.4 billion in contracts, with roughly $362 million, or 25%, awarded to certified minority, women and small business firms, according to a financial report from the city's Office of Business Opportunity.
Whitmire said the majority of businesses certified in the MWBE program are also registered in the SBE, or Small Business Enterprise Program, which he said will play a major role in the contracting process.
City officials said they will abide by the court's decision regarding existing contracts. However, as of July 29, it is unclear if the city will move to appeal the ruling or not.
