The chair of the American Bar Association's criminal justice section believes Florida Attorney General James Uthmeier is "misstating the law" when he released an opinion that 83 state laws giving preferences, quotas and other considerations related to race were unconstitutional.
"Racial discrimination is wrong. It is also unconstitutional. Yet Florida maintains several laws on its books that promote and require discrimination on its face," Uthmeier wrote in a Jan. 19 opinion.
He cited a ruling by the U.S. Supreme Court, which banned the limited use of race in college admissions. A majority of the court decided most affirmative action efforts in college admissions violated the 14th Amendment's Equal Protection Clause.
READ MORE: Florida Black Democratic lawmakers speak out against AG's anti-affirmative action opinion
"The question of law presented here is: Are Florida laws that mandate discrimination based on race by giving preferences to certain racial groups, using race-based classifications or employing racial quotas, constitutional? In short, the answer is no," Uthmeier continued.
Following this, the Florida Legislature's Democratic Black Caucus held a press conference to call out the opinion, which was published on Martin Luther King Jr. Day. WUSF government reporter Douglas Soule previously reported how Democrats thought the timing of the opinion was inappropriate.
"This feels not like a neutral legal interpretation, but more like an attack, an attack on the idea that history matters, that policy can be a tool to correct past and ongoing harm," said Sen. Darryl Rouson, D-St. Petersburg.
Uthmeier defended the timing to FOX30 in Jacksonville.
"It seemed like a fitting day because his vision at the end of the day was to ensure that nobody would get discriminatory, favorable treatment based on the color of their skin," he said.
On "The Florida Roundup," host Tom Hudson spoke with American Bar Association Criminal Justice Section Chair Melba Pearson and Shaheewa Jarrett Gelin with the Florida Association of Black Chambers of Commerce about how the laws have been used in the past and if the legal reasoning is sound.
The attorney general's office declined "The Florida Roundup's" invitation for an interview.
Have these laws been robustly enforced before the AG's opinion?
Gelin is also with the Broward County Black Chamber of Commerce. She expressed how the AG's opinion was "concerning" and mentioned how Statute 287.094 establishes a certification of minority business enterprises.
"That was put there for a reason. There's a history behind these types of laws that have created simply an opportunity for our businesses to engage," Gelin said. "There's nothing in these statutes that has been listed that provides a guarantee that Black businesses or minority businesses get contracts."
She argued that although Uthmeier's opinion mentions quotas and affirmative action-type programs, the statutes mentioned are "very vague mentions that local governments or the state may — instead of shall or must."
She also said that the statutes haven't been widely enforced and that she was told the state government didn't track it.
"There's no teeth. It's a may, not a shall. There's no requirement. There's no criteria," Gelin said.
What may be the impact on minority businesses?
Gelin said the opinion puts local cities and counties "on edge." She believes there are certain regions in the state, like Hillsborough County, South Florida and Orlando, where certain programs should be instituted because there's a robust, diverse population.
Gelin described how some places have put programs in place after careful research and review to rectify a disparity that didn't fit the representation of businesses in communities.
"These are not programs that have been put in place to discriminate but remedy issues that have been seen before," she said. "And with this opinion, it does put our cities and counties and our elected officials and staff at cities and counties on edge, and I've seen that firsthand."
Do you think the Attorney General is defending the Constitution by not enforcing these laws?
American Bar Association Criminal Justice Section Chair Melba Pearson said she believes attorneys general from the federal level on down don't seem to have a "firm grasp" on the law.
"The Attorney General is misstating the law here because that's not what the Supreme Court held in terms of the types of scrutiny and the types of initiatives that would be considered unconstitutional," Pearson said. "He's basically just giving a political argument that's dressed up as constitutional doctrine."
She added that the Supreme Court has not said race can only be considered in two situations: Avoiding imminent harm and serious risks to a person who is in prison or fixing a specific, identified instance of past discrimination that was unconstitutional.
Pearson said that "narrowing is ridiculous." The Supreme Court allows for certain instances where these types of initiatives are permissible, she said.
"So the reality here is that the attorney general is just being deliberately blind in terms of the patterns of government-driven discrimination that have occurred in the state of Florida in the past," Pearson said.
Uthmeier said in his opinion that the reasoning and strict scrutiny analysis applies "equally to race-based state action occurring in any context — whether it be in government contracting business, healthcare, appointments or other areas." He said the Florida Supreme Court recently applied this case law outside of the educational context, as "have several federal courts."
"Courts are therefore clear that honoring and enforcing the Fourteenth Amendment's promise to root out all forms of racial discrimination must be uniform throughout contexts and circumstances," he wrote.
Pearson said the laws and initiatives were put in place to address "generation harm" and that it's "clear he has no regard for marginalized communities in the state of Florida."
"So targeting minority physician networks, what's the harm in making sure that there are medical professionals that are diverse — that have had different life experiences, especially when you're looking at the Black maternal health crisis — women dying in childbirth," Pearson said.
Pearson added that it is technically within a prosecutor's discretion to be able to decide what is going to serve their community best.
This story was compiled from interviews conducted by Tom Hudson for "The Florida Roundup."
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