Affirmative Action Breaks Mr. Bones

I f one refuses to hire or contract with someone because he's black, that's discrimination. But if one cancels a contract because a black person refuses to become a government-certified minority-in-need, that's called affirmative action.

Outraged? Consider the case of John Goode, the former owner of Mr. Bones BBQ in Austin, Texas.

From 1989 through 1996, through subcontracts with concession vendors, Goode's Mr. Bones served patrons of special events at several city-owned venues, including Austin's convention center, the Palmer Auditorium, and the City Coliseum. In addition, Goode maintained a restaurant in Austin and, in September 1996, opened a new location near the airport.

Goode's problems started in spring 1996, after a city-commissioned consultant report found discrimination in the city's contracting, even under its existing affirmative-action program. In response, Austin became more aggressive in its assistance to minority-and female-owned businesses, setting participation goals ranging from 10% to 30% for these businesses.

Although African-American, Goode felt he didn't need any help securing contracts. After all, he already had a concession deal through a new concessionaire, Fine Host Corporation. ''I had been there six years and I figured the product could stand on its own,'' says Goode, later adding, ''My product was good, my service was good, and the customers were happy.''

So, Goode refused to register with the city as officially black. He opposes race-based preferential treatment and resents the programs' invasion of privacy. He had registered in 1992, when his then-contractor, Volume Services, had been pressured by the city. But he didn't like the paperwork and was opposed to giving the city personal tax and business information.

But Fine Host Corporation, with whom he'd been contracting for just over a year, was under pressure to meet the city-set quota of 25%. And when Goode refused to become a government-certified minority, Fine Host canceled his contract.

''Due to the lack of proof (of your minority status), we cannot continue this business relationship,'' wrote Fine Host's general manager, Todd Avila, in an Aug. 2, 1996, letter that suggests Fine Host was less interested in the quality of Goode's barbecue than the color of his skin.

Avila later stated in an affidavit: ''Had Fine Host known that Mr. Bones BBQ was in fact not a certified minority-owned business, it would not have entered into any contractual relationship with Mr. Bones in the first place.''

To the untrained eye, this would appear to be racial discrimination. Goode, who later lost his business and house due to the abrupt loss of cash flow, certainly saw it as such, so he filed suit against both the city of Austin and Fine Host for wrongful termination.

But to U.S. District Judge Sam Sparks, this is just affirmative action. In December 1998, Sparks dismissed the case on summary judgment, finding that Goode had no standing to sue, since the affirmative action program is designed to benefit him.

''Fine Host would never have subcontracted out its barbecue business to Mr. Bones without the city's 25% goals for participation by certified'' minorities and female-owned businesses, ruled Sparks. After all, Sparks later noted, ''Goode was replaced by another (business) owned by an African American.''

To hammer the point home, Sparks assessed Goode one more benefit: $6,850 in court costs incurred by the city and Fine Host.

Goode plans to appeal the decision. But he isn't relying on benevolent courts. He's working at a motor factory and saving money to get back into business.

''It will take about a year to get everything together,'' says Goode, who, unable to pay for storage, was forced to sell his equipment. ''Buy a piece, put it in storage. Buy another piece, put it in storage. The same way I did last time.''

And he certainly doesn't have the attitude of a victim. ''I have something I am very proud of,'' says Goode. ''A bill of sale for 50 acres of land for $350 in Halletsville, Texas, bought in 1865 by my great-great-grandfather. I look at that when I'm down, and it reminds me that I don't have a reason in the world to be complaining. Just work harder and get there.''