HOUSTON — The City of Houston has asked a federal court to reconsider its ruling that found part of the city’s Minority, Women and Small Business Enterprise Program unconstitutional, arguing that the judge misapplied legal precedent and that the program addresses documented disparities in city contracting.
Houston filed a motion Monday in the U.S. District Court for the Southern District of Texas seeking to alter or amend U.S. District Judge David Hittner’s July ruling. The filing does not constitute an appeal to the 5th U.S. Circuit Court of Appeals.
Hittner ruled last month that the racial component of the city’s MWSBE program violated the Equal Protection Clause of the 14th Amendment. The program, established in 1984, requires the city to award some municipal contracts to minority-owned businesses.
Houston City Attorney Arturo Michel said Hittner made a “clear error of law” in applying court precedent. The city acknowledged that the program uses racial classifications and therefore faces strict judicial scrutiny but argued that plaintiffs failed to prove the program could not satisfy that legal standard.
Michel cited a 2022 city disparity study that found a “significant statistical disparity” between qualified minority contractors and minority contractors hired by the city.
The city argued that the study provides evidence of a continuing disparity and supports its interest in maintaining the program’s racial component.
The lawsuit began in 2023 when Landscape Consultants of Texas and Metropolitan Landscape Management, owned by Jerry and Theresa Thompson, challenged the program. The white business owners alleged that the program disadvantaged their companies and violated their constitutional rights.
The Thompsons’ attorney, Erin Wilcox of the Pacific Legal Foundation, urged Houston to accept Hittner’s ruling.
“A federal court has made clear that the government cannot treat people differently based on race when awarding public contracts,” Wilcox said.
In his July ruling, Hittner found that the program provided “preferential treatment” based on race.