Kansas government contracting could be affected by affirmative action ruling

Kansas government operations and contracting of minority-owned businesses could be affected by Attorney General Kris Kobach's legal interpretation of the U.S. Supreme Court's affirmative action ruling.

Kobach and a dozen other attorneys general warned the nation's largest businesses that racial preferences in employment is now unconstitutional.

While the Supreme Court case was on affirmative action in higher education, Kobach's letter tied the same reasoning to employment practices at private businesses. He warned the nation's largest businesses not to engage in such practices as contracting quotas for minority-owned businesses but made no mention of related state government efforts.

"We certainly think it does apply to government decision-making — including contracting, including hiring, including promotion — that the government must, all governments must, be race neutral in the way they address these decisions," Kobach later told reporters. "We have not yet been asked for an official attorney general opinion on any specific statute or contracting scenario in the wake of the Supreme Court's opinion, but we do believe that that opinion would be binding upon state agencies and potentially on state contracting, depending on the context."

Attorneys general threaten to sue big businesses

Kobach was one of 13 attorneys general to sign the letter, which he co-led with Tennessee Attorney General Jonathan Skrmetti. It was sent to Fortune 100 businesses and took to task Apple, Google, Microsoft, Netflix and other companies.

Kobach warned big businesses against racial preferences in employment, including contract preferences for Black-owned businesses. He wrote that "race-based employment and contracting violates both state and federal law, and as the chief law enforcement officers of our respective states we intend to enforce the law vigorously."

Kobach has since said he had no concerns with any specific Kansas companies.

"The purpose of the letter is to give notice to the corporations all across the country that this is how we believe the Supreme Court's ruling may affect you in your hiring practices," he said. "So really the ball is in the companies' court now to make any adjustments to what they're doing with respect to hiring and any considerations of race. So at this stage, I think it's only fair to allow the companies to assess and, if necessary, make corrections."

But it remains unclear what Kobach's treat to sue companies that give preferential contracting treatment to minority-owned businesses means for Kansas state government initiatives designed to help give preferential treatment to minority-owned businesses.

His legal interpretation could mean less opportunity for minority-owned businesses to secure contracts and put federal funding at risk.

More: Kris Kobach, AGs threaten 'legal consequences' against businesses using race to hire

Kobach's interpretation could hurt minority-owned businesses

While the letter implied a threat to sue big businesses involved in race-based employment preferences, it made no mention of holding government to the same standard.

The Kansas Department of Commerce is tasked by state law with operating an Office of Minority and Women Business Development. That office has the job of certifying minority-owned businesses, which can help such businesses secure contracts with other businesses and governments, and maintaining a directory.

While it is unclear if Kobach's legal interpretation would consider government certification of minority-owned businesses to be unconstitutional, the law remains on the books and there are no known constitutional challenges against it.

The Kansas Department of Transportation has an Office of Civil Rights Compliance. It has the job of ensuring compliance with federal highway funding contract goals for disadvantaged business enterprises, which includes minority-owned businesses. The federal law has withstood legal challenges.

"The intent is to have a level of DBE participation equal to that which would occur without the effects of past or present discrimination," a KDOT program manual states.

The current goals at KDOT are 0.74% for Federal Transportation Administration projects and 7.79% for Federal Highway Administration projects.

But such "racial preferences and quotas in selecting suppliers" were listed in Kobach's letter as illegal. It is unclear how KDOT could comply with both Kobach's affirmative action interpretation and the federal funding requirements.

Kris Kobach has not provided guidance to state agencies

Spokespeople for the Commerce and Transportation departments both said their agencies have received no guidance from the attorney general's office on how to comply with the affirmative action ruling. Still, both said, their agencies have "always and will continue to follow applicable state and federal law in its programs."

Spokespeople for Kobach didn't directly answer multiple questions about how his legal interpretation applied to state government contracting and the state's certification of minority-owned business. Instead, they sent a one-sentence statement from Kobach: "The Supreme Court has made clear that racial discrimination in employment is forbidden."

Likewise, a spokesperson for Skrmetti did not respond to questions about the letter's implications for state government. Neither did a spokesperson for Tennessee Gov. Bill Lee, whom Skrmetti previously served as chief legal counsel, when asked if Skrmetti's office had provided any guidance.

Like Kansas, Tennessee state government also certifies minority-owned businesses while also promoting them as part of federal highway fund goals.

Kobach later told reporters that he currently has no specific concerns with existing contracting practices in state government, though he offered to provide his legal opinion should the agencies ask for it.

"The attorney general's office is the chief counsel for all of state government, including the agencies," Kobach said. "And so we would expect that if state agencies think there might be something that is contrary to the Supreme Court's opinion or to the extension of that precedent into their agency's activities, then we would hope that they would come to us. But no, there's not a specific state agency practice that we are currently investigating."

Jason Alatidd is a statehouse reporter for the Topeka Capital-Journal. He can be reached by email at jtidd@gannett.com. Follow him on Twitter @Jason_Alatidd.

This article originally appeared on Topeka Capital-Journal: US Supreme Court race case could affect Kansas government: Kris Kobach