Revised City of South Bend Disparity Study Report

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City of South Bend Disoarity Study 2020 measures designed to limit the rights and opportunities of minorities to legislation that benefits these historic victims of discrimination. Strict scrutiny requires that a government entity prove both its "compelling interest" in remedying identified discrimination based upon "strong evidence," and that the measures adopted to remedy that discrimination are "narrowly tailored" to that evidence. However benign the government's motive, race is always so suspect a classification that its use must pass the highest constitutional test of "strict scrutiny." The Court struck down the City of Richmond's Minority Business Enterprise Plan ("Plan") that required prime contractors award City construction contracts to sub- contract at least 30 percent of the project to Minority -Owned Business Enterprises ("MBEs"). A business located anywhere in the country that was at least 51 percent owned and controlled by minority citizens was eligible to participate. The Plan was adopted after a public hearing at which no direct evidence was presented that the City had discriminated on the basis of race in awarding contracts or that its prime contractors had discriminated against minority subcontractors. The only evidence before the City Council was: (a) Richmond's population was 50 percent Black, yet less than one percent of its prime construction contracts had been awarded to minority businesses; (b) local contractors' associations were virtually all White; (c) the City Attorney's opinion that the Plan was constitutional; and (d) general state- ments describing widespread racial discrimination in the local, Virginia, and national construction industries. In affirming the court of appeals' determination that the Plan was unconstitu- tional,lustice Sandra Day O'Connor's plurality opinion rejected the extreme posi- tions that local governments either have carte blanche to enact race -based legislation or must prove their own active participation in discrimination: [A] state or local subdivision... has the authority to eradicate the effects of private discrimination within its own legislative jurisdiction.... [Richmond] can use its spending powers to remedy private discrimination, if it identifies that discrimination with the particularity required by the Fourteenth Amendment... [I]f the City could show that it had essentially become a "passive participant" in a system of racial exclusion ... [it] could take affirmative steps to dismantle such a system. 16 Strict scrutiny of race -based remedies is required to determine whether racial clas- sifications are in fact motivated by either notions of racial inferiority or blatant racial politics. This highest level of judicial review "smokes out" illegitimate uses of race by assuring that the legislative body is pursuing a goal important enough to warrant use of a highly suspect tool.17 It further ensures that the means chosen "fit" this compelling goal so closely that there is little or no possibility that the 16. Croson, 488 U.S. at 491-92. 22 0 2020 Colette Holt & Associates, All Rights Reserved.