IN 1989, THE SUPREME Court issued a landmark decision that appeared to signal the end of racial preferences in public contracting. In City of Richmond v. Croson, a plumbing company (Croson) had successfully bid to install toilets in the city jail. Richmond (like many local governments) required that 30 percent of its construction spending go to minority subcontractors. When Croson failed to find a minority-owned subcontractor for the job, the city rebid the contract, prompting Croson's suit. Overturning set-asides like Richmond's, the justices noted the role of racial politics in creating such programs and set an extremely high threshold for their continuance. Indeed, in the ensuing years, plaintiffs won 24 of 25 cases against state and local business preference programs.

Still, like kudzu, preferences have proved difficult to eradicate. Masked by evasive terminology and justified by tendentious studies, minority business set-asides persist. Politicians know that lawsuits against such programs are costly and time-consuming, and they are not above retaliating against firms with the temerity to sue. And if the government loses after years of litigation, the taxpayers cover the legal fees.

Now that calculus may change, because a federal judge in Miami has just given the victims of preferences an important new tool. On November 10, the governing board of the South Florida Water Management District ($792 million budget) recommended ending its two-decade-old contracting preference program, even though there was no pending litigation. Board members had become worried about being held personally liable for implementing the program. The source of their concern was a new federal ruling.

The case that got the board's attention is Hershell Gill Consulting Engineers v. Miami-Dade County. Gill is a small firm with fewer than a dozen employees earning about $1 million annually. While most of its work is in the private sector, the company wanted the opportunity to contract with Dade County. However, Gill Engineering is owned by a white male, and the county required that at least 42 percent of the dollars awarded in architecture and engineering contracts go to blacks, Hispanics, and women. The policy severely disadvantaged Gill.

Dade County's contracting preferences began in the 1980s. In 1996, the county lost an expensive case about construction preferences, but preserved preferences in all other purchase areas. By 1998, the county manager and the county attorney's office recommended that preferences be abandoned in architecture and engineering contracts because "parity" for the favored groups had been reached. Because of Florida's sunshine laws this recommendation was broadcast on cable television. The county commissioners, however, twice rejected the recommendation and refused to modify the program.

The commissioners then decided they needed a new consultant's study to justify the policy they wanted to preserve. (In theory, a showing that the county engaged in systemic discrimination might justify remedial preferences.) So a new study was churned out at significant expense to the county's taxpayers. This study was so badly flawed that its author admitted at trial, "We do have some problems in the data." As Judge Adalberto Jordan wryly concluded, that admission, "in my view, is a vast understatement."