Any trial court should be delighted to see the filing of cross motions of parties for summary judgment. The parties may simultaneously admit that the lack of genuine issues presents the case for decision. The parties did so in a recent case, Lalla v. City of New Orleans, 1999 WL 138900 (E.D.La.), March 12, 1999. The issue was the constitutionality of the City of New Orleans program for hiring New Orleans Fire Department recruits. The City of New Orleans used race as a factor in that hiring program and the City admitted it. Thus, the court found that there was no need to discuss other issues of the case and proceeded to an examination of circumstances called "constitutional scrutiny" applicable under the Fourteenth Amendment.
*2 Under a strict scrutiny analysis, this Court must determine: 1) Does the racial preference serve a compelling government interest, and 2) is the racial preference narrowly tailored to the achievement of that goal? Adarand, 515 U.S. 200, 115 S.Ct. at 2117. Placed in the context of these two considerations, the Court must determine whether the Defendant's usage of race as a factor and a quota system in the hiring process violates the Constitution.
This Court must first consider whether the City has presented a "compelling state interest" to justify the usage of this voluntary remedial plan. Thus, the Court inquires whether the city had a "strong basis in evidence for its conclusion that remedial action was necessary."
The court gave substantial consideration to the utilization of statistical evidence in the analysis called constitutional scrutiny. Other opinions of courts have concluded that statistics alone are sufficient to constitute a strong basis in evidence. Judge Livaudais found that statistics alone are insufficient to constitute a strong basis in evidence and in accordance with that finding, came to the conclusion that the City of New Orleans did not supply the court with a sufficient evidence to justify the hiring program involved. The court concluded that "as a matter of law, that defendants have not offered a strong basis in evidence" sufficient to justify that the usage of race as a hiring factor and/or the usage of a racial quota was needed to remedy the present effects of past discrimination.
Judge Livaudais thereby concluded that the City did not have a compelling state interest to use race as a hiring factor and that the defendants violated the plaintiff's equal protection rights under the Fourteenth Amendment to the United States Constitution.
Lalla did not involve an issue about enforcement of contractual obligations. A constitutional issue can upset a contract. While some matters have been found to have been waived by a party to a public contract, a constitutional issue may survive formation of the contract with the low bidder. The public bid law provides for nullity of contracts formed in violation of its prohibitions.