Is the State’s Existing MBE Statute Unconstitutional?
Kegler Brown Construction Newsletter November 1, 2007
Many courts around the country have declared Minority Business Enterprise ("MBE") "set aside" programs unconstitutional, including the City of Columbus MBE program. A recent decision from the Franklin County Court of Appeals has ruled that Ohio's MBE Program is unconstitutional, at least as applied to the facts of that case. Ritchey Produce Company v. State of Ohio, Case No. 97APE04-567 (October 7, 1997). The Court stated that the State's existing MBE program is a race per se classification which was unconstitutionally applied to deny MBE certification to the plaintiff who claimed he was an "oriental," but went on to infer that Governor Voinovich's executive order 96-53V, establishing a "Socially and Economically Disadvantaged Business Policy" to assist all "disadvantaged" Ohio citizens regardless of race, might be constitutional.
The State is attempting to appeal this decision to the Ohio Supreme Court. While it is too early to declare the entire State MBE set-aside program extinct, it certainly has numerous legal problems that threaten its existence.