Revised City of South Bend Disparity Study Report

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I. EXECUTIVE SUMMARY Colette Holt & Associates (CHA) was retained by the City of South Bend ("City") to per- form a study in conformance with strict constitutional scrutiny to determine its utiliza- tion of Minority- and Woman -Owned Business Enterprises (collectively "M/WBEs"); the availability of M/WBEs in its market area; any disparities between its utilization and M/WBE availability; and to evaluate whether the use of race -conscious measures is supported by the results of this analysis. We were also tasked with making recom- mendations for increasing the inclusion of M/WBEs and small businesses. We ana- lyzed contract data for calendar years 2015 through 2017. A. Summary of the Strict Constitutional Standards Applicable to Minority and Woman Business Programs To be effective, enforceable, and legally defensible, a race- and gender-based pro- gram for public sector contracts must meet thejudicial test of constitutional "strict scrutiny". Strict scrutiny is the highest level of judicial review. The City must meet these tests to ensure any race- and gender -conscious program is in legal compli- ance. Strict scrutiny analysis has two elements: 1. The government must establish its "compelling interest" in remediating race discrimination by current "strong evidence" of the persistence of discrimination. Such evidence may consist of the entity's "passive participation" in a system of racial exclusion. 2. Any remedies adopted must be"narrowly tailored" to that discrimination; the program must be directed at the types and depth of discrimination identified. The compelling governmental interest requirement has been met through two types of proof: 1. Statistical evidence of the underutilization of minority or woman firms by the City and/or throughout the City's geographic and industry market area compared to their availability in the market area. This is a "disparity analysis." 2. Anecdotal evidence of race- or gender -barriers to the full and fair participation of minority- and woman -owned firms in the market area and in seeking contracts with the City. Anecdotal data can consist of interviews, surveys, public hearings, academic literature, judicial decisions, legislative reports, and other information. 0 2020 Colette Holt & Associates, All Rights Reserved.