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II. LEGAL STANDARDS FOR <br />CONTRACTING AFFIRMATIVE <br />ACTION PROGRAMS <br />A. Summary of Constitutional Equal Protection <br />Standards <br />To be effective, enforceable, and legally defensible, a race -based program for pub- <br />lic contracts must meet the judicial test of constitutional "strict scrutiny." Strict <br />scrutiny is the highest level of judicial review. The test consists of two elements: <br />1. The government must establish its "compelling interest' in remedying race <br />discrimination by current "strong evidence" of the persistence of <br />discrimination. Such evidence may consist of the entity's "passive <br />participation" in a system of racial exclusion. <br />2. Any remedies adopted must be "narrowly tailored" to that discrimination; <br />that is, the program must be directed at the types and the depth of <br />discrimination identified .2 <br />The compelling interest prong has been met through two types of proof: <br />1. Statistical evidence of the underutilization of minority firms by the agency <br />and/or throughout the agency's geographic and industry market area <br />compared to their availability in the market area. These are disparity indices, <br />comparable to the type of "disparate impact' analysis used in employment <br />discrimination cases. <br />2. Anecdotal evidence of race -based barriers to the full and fair participation of <br />minority firms in the market area seeking contracts with the agency, <br />comparable to the "disparate treatment' analysis used in employment <br />discrimination cases.3 Anecdotal data can consist of interviews, surveys, <br />public hearings, academic literature, judicial decisions, legislative reports, and <br />other information. <br />The narrow tailoring requirement has been met through the satisfaction of five <br />factors to ensure that the remedy "fits" the evidence: <br />2. City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989). <br />3. Id. at 509. <br />0 2020 Colette Holt & Associates, All Rights Reserved. 19 <br />