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By 1970, almost all blacks working in construction were still filling low-paying, unskilled jobs. Yet, because of Davis-Bacon, federal contractors were still forbidden to pay workers wages suitable for unskilled labor. Even as the Labor Department was launching its Philadelphia Plan and other affirmative-action schemes to encourage the use of skilled minority workers in federal construction projects, its Davis-Bacon rules were effectively keeping the vast majority of unskilled black workers out of such projects, where they could have learned skills on the job.
The Labor Department continued to recognize unskilled workers only when they participated in government-approved apprenticeship programs. Otherwise, they had to be considered, for pay purposes, journeymen of the trade to which they were apprenticed. An employee’s daily pay had to be based on the wage for the highest level of skill at which he did any work at all. So if a laborer hammered one nail, he automatically became a carpenter and had to be paid as such. Given those pay requirements, contractors would, of course, hire a skilled construction worker-almost always white—instead of an unskilled helper—often black.
Contractors who have tried to help black workers break into the construction industry have found Davis-Bacon a huge obstacle. Ralph Jones is the president of a company that manages housing projects for the Department of Housing and Urban Development. Last year, his company took over a pair of very dilapidated public housing buildings in black Tulsa, Oklahoma. Jones wanted to hire unemployed residents at $5.00 an hour to help rip out everything that needed to be ripped out before he could bring in skilled craftsmen to fix things up. But he found that he would have to pay them $14 an hour because of Davis-Bacon, and that was the end of that.
Elzie Higgibottom, a successful builder of federally subsidized low-income housing in Chicago, is deeply committed to helping build the economic base of Chicago’s poor neighborhoods. But, under Davis-Bacon, Higgibottom complained to The Washington Monthly, “I’ve got to start out a guy at $16 an hour to find out if he knows how to dig a hole. I can’t do that.” So much for giving the unemployed a chance.
Studies by the U.S. comptroller general, the American Enterprise Institute, and economists Walter Williams and William Keyes, among others, have confirmed what Jones and Higgibottom already know from experience: Repealing Davis-Bacon would increase black participation in the construction industry. But the NAACP and other major civil rights groups, allied with unions on many issues, support Davis-Bacon and put their faith in civil-rights laws and the good will of unions.
Yet, even assuming that craft unions have changed their discriminatory ways, it will take decades for black membership to match the black share of the working population. U.S. Census data from 1980 show that blacks were significantly underrepresented in many construction crafts. Let us make the heroic—and obviously incorrect—assumption that in 1975 all craft unions not only stopped discriminating against blacks but adopted hiring quotas that reflected the percentage of blacks in the work force. Because unions follow strict seniority rules, blacks would have to wait for the retirement of all white workers employed prior to 1975 before they could achieve equal status in the unions. In other words, they’d have to wait until about 2025.
Meanwhile, blacks are still disproportionately represented as unskilled laborers in the construction industry; they are almost twice as likely as whites to hold such positions. Partly in response to this situation, the Labor Department adopted new regulations in 1982 to let Davis-Bacon contractors use unskilled helpers. After much litigation with the construction unions, and some modifications, the new rules went into effect on February 4, 1991. They promised unskilled blacks a greater opportunity to break into the construction industry.
But that wasn’t the end of the story. In late March, the unions convinced a majority of the House and Senate to sneak into an emergency appropriations bill a provision prohibiting the Labor Department from spending money to put the new regulations into effect. The leading Democratic sponsors of the Civil Rights Act of 1991, showing more commitment to their union supporters than to the principle of equal economic opportunity, all voted to sustain the provision against a challenge by Sen. Don Nickles (R-Okla.). President Bush, unfortunately, signed the amended appropriations bill in April.
If the new regulations are ever implemented, they will be a boon to black and other minority workers. The rules do not go far enough, however. First, they restrict the use of helpers to areas where their use “prevails,” a legally mandated but harmful qualification. Heavily unionized cities where the use of helpers doesn’t “prevail” are home to millions of unskilled minority youths who will continue to be frozen out of Davis-Bacon projects.
Second, the new rules set a maximum ratio of two helpers to every three journeymen employed by a contractor. In nonunion construction, about one-third of all workers are typically helpers. But the ratio varies with the project. In small-scale construction, where highly skilled labor isn’t critical, the ratio must sometimes rise above the maximum 2 to 3. So the new rule (if upheld and implemented) will still at times prove a barrier. Public housing residents who are managing their own buildings, for instance, will still find it difficult to hire unskilled or semiskilled tenants to renovate their buildings.
Indeed, while the NAACP continues to support Davis-Bacon, community activists in poor areas find the law a primary obstacle to achieving their two main goals—increasing employment and improving housing. Mary Nelson, head of Bethel New Life, a Chicago organization that rehabilitates low-income housing, told Stephen Chapman of the Chicago Tribune that her organization’s task would be “a thousand times easier without Davis-Bacon.’’
And Marshall England, a Bronx activist who encourages local black youths to become entrepreneurs, finds his housing ideas utterly thwarted by the law. England would like to see local people “homestead” dilapidated buildings that have been abandoned and are now owned by New York City. He envisions a “sweat equity” program in which young residents of the area would repair the buildings and eventually own homes in them.
But despite the billions wasted by HUD on housing projects that become uninhabitable before they are completed, and despite hundreds of millions of dollars spent by the city and the state on providing housing for New York’s indigents, England cannot get any federal, state, or local funds for his project unless he pays the union wages required by Davis-Bacon and its state and local equivalents. England calls Davis-Bacon “the biggest inhibitor to good housing in poor areas.”
What is really needed is a legal challenge to Davis-Bacon that will wipe the law off the books once and for all. The best hope for such a challenge is an antidiscrimination suit based on the statute’s intent. In the 1977 case Village of Arlington Heights v. Metropolitan Housing Development Corporation, the Supreme Court recognized that a statute may have a discriminatory purpose that is neither “express nor appear[s] on the face of the statute.” In that same case, the Court said that, “where there is proof that a discriminatory purpose has been a motivating factor,” it will strictly scrutinize the law, a process few laws survive. Given the manifold evidence that Davis-Bacon was passed with discriminatory intent, the Arlington Heights test should be satisfied easily.
One problem with such a challenge is that the law was passed 60 years ago, making it difficult to impute discriminatory intent to today’s Congress. But the law has not been substantially modified since 1935, and it still has a discriminatory impact. As a Heartland Institute study concludes, “Under the currently applicable doctrines of the Supreme Court, Davis-Bacon is unconstitutional.”