Revised City of South Bend Disparity Study Report

Home Browse Search

City of South Bend Disparity Study 2020 sufficient evidence to support an inference of discrimination, the plaintiff must rebut that inference in order to prevail.1111 A plaintiff "cannot meet its burden of proof through conjecture and unsupported criticism of [the government's] evidence." 12 For example, in the challenge to the Minnesota and Nebraska DBE programs, "plaintiffs presented evidence that the data was susceptible to multiple interpretations, but they failed to present affir- mative evidence that no remedial action was necessary because minority-owned small businesses enjoy non-discriminatory access to and participation in highway contracts. Thus, they failed to meet their ultimate burden to prove that the DBE program is unconstitutional on this ground .,,13 When the statistical information is sufficient to support the inference of discrimination, the plaintiff must prove that the statistics are flawed .14 A plaintiff cannot rest upon general criticisms of stud- ies or other evidence; it must carry the case that the government's proof is inade- quate to meet strict scrutiny, rendering the legislation or governmental program illega1.15 To meet strict scrutiny, studies have been conducted to gather the statistical and anecdotal evidence necessary to support the use of race- and gender -conscious measures to combat discrimination. These are commonly referred to as "disparity studies" because they analyze any disparities between the opportunities and experiences of minority- and women -owned firms and their actual utilization com- pared to White male -owned businesses. Quality studies also examine the ele- ments of the agency's program to determine whether it is sufficiently narrowly tailored. The following is a detailed discussion of the parameters for conducting studies leading to a defensible program. B. Elements of Strict Scrutiny The U.S. Supreme Court, in the case of the City of Richmond v J.A. Croson Co., established the constitutional contours of permissible race -based public contract- ing programs. Reversing long established Equal Protection jurisprudence, the Court, for the first time, extended the highest level of judicial examination from 11. Engineering Contractors Association of South Florida, Inc. v. Metropolitan Dade County, 122 F.3d 895, 916 (11th Cir. 1997) ("Engineering Contractors II"). 12. Concrete Works of Colorado, Inc. v. City and County of Denver, 321 F.3d 950, 989, cert. denied, 540 U.S. 1027 (2003) (10th Cir. 2003) ("Concrete Works IV'). 13. Sherbrooke Turf, Inc. v. Minnesota Department of Transportation, 345 F.3d. 964, 970 (8th Cir. 2003), cert. denied, 541 U.S. 1041 (2004). 14. Coral Construction, 941 F.2d. 910, 921 (9th Cir. 1991); Engineering Contractors ll, 122 F.3d at 916. 15. Adorond VII, 228 F.3d at 1166; Engineering Contractors 11, 122 F.3d at 916; Concrete Works of Colorado, Inc. v. City and County of Denver, 36 F.3d 1513, 1522-1523 (10th Or. 1994) ("Concrete Works II"); Webster v Fulton County, Georgia, 51 F.Supp.2d 1354, 1364 (N.D. Ga. 1999), offd per curiam, 218 F. 3d 1267 (11th Cir. 2000); see also Wygont v. Jackson Board of Education, 476 U.S. 267, 277-278 (1986). 0 2020 Colette Holt & Associates, All Rights Reserved. 21