Revised City of South Bend Disparity Study Report

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City of South Bend Disparity Study 2020 1. The necessity of relief; 2. The efficacy of race -neutral remedies at overcoming identified discrimination; 3. The flexibility and duration of the relief, including the availability of waiver provisions; 4. The relationship of the numerical goals to the relevant market; and 5. The impact of the relief on the rights of third parties. Most courts, including the Seventh Circuit, have subjected preferences for Women -Owned Business Enterprises ("WBEs") to "intermediate scrutiny." Gen- der-based classifications must be supported by an "exceedingly persuasive justifi- cation" and be "substantially related" to the objective.4 However, appellate courts have applied strict scrutiny to the gender-based presumption of social dis- advantage in reviewing the constitutionality of the DBE program,5 or held that the results would be the same under strict scrutiny.6 Classifications not based on race, ethnicity, religion, national origin or gender are subject to the lesser standard of review of "rational basis" scrutiny, because the courts have held there are no equal protection implications under the Fourteenth Amendment for groups not subject to systemic discrimination.? In contrast to strict scrutiny, rational basis means the governmental action must only be "ratio- nally related" to a "legitimate' government interest 8 Thus, preferences for per- sons with, for example, disabilities or veteran status, may be enacted with vastly less evidence than that required for race- or gender-based measures to combat historic discrimination. Unlike most legal challenges, the defendant has the initial burden of producing "strong evidence" in support of its race -conscious program.9 The plaintiff must then proffer evidence to rebut the government's case, and bears the ultimate bur- den of production and persuasion that the affirmative action program is unconsti- tutional.10 "[W]hen the proponent of an affirmative action plan produces 4. Cf. United States v Virginia, 518 U.S. 515, 532 n.6 (1996). 5. Northern Contracting, Inc. v Illinois Department of Transportation, 473 F.3d 715, 720 (7th Cir. 2007), cert. denied 15- 1827, June 26, 2017 ("Northern Contracting /1/'). 6. Western States Paving Co., Inc. v Washington Department of Transportation, 407 F.3d 983 (9th Cir. 2005), cert. denied, 546 U.S. 1170 (2006). 7. See generally, Coral Construction Co. v. King County, 941 F. 2d 910 (9th Cir. 1991); Equal, Found. v. City of Cincinnati, 128 F. 3d 289 (6th Cir. 1997). 8. Heller v Doe, 509 U.S. 312, 320 (1993). 9. Aiken v. City of Memphis, 37 F.3d 1155, 1162 (6th Cir. 1994). 10. W.H. Scott Construction Co., Inc. v City oflockson, Mississippi, 199 F.3d, at 219 (5th Cir. 1999); Adorond Constructors, Inc. v. Slater, 228 F.3d 1147, 1166 (10th Cir. 2000), rent. granted then dismissed as improvidently granted, 532 U.S. 941 (2001) ("Adarand VII"). 20 0 2020 Colette Holt & Associates, All Rights Reserved.