Revised City of South Bend Disparity Study Report

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City of South Bend Disparity Study 2020 Having found that Richmond had not presented evidence in support of its compel- ling interest in remedying discrimination—the first prong of strict scrutiny—the Court went on to make two observations about the narrowness of the remedy— the second prong of strict scrutiny. First, Richmond had not considered race -neu- tral means to increase MBE participation. Second, the 30 percent quota had no basis in evidence, and was applied regardless of whether the individual MBE had suffered discrimination.20 Richmond noted that the City "does not even know how many MBEs in the relevant market are qualified to undertake prime or subcon- tracting work in public construction projects"21 Apparently recognizing that the opinion might be misconstrued to categorically eliminate all race -conscious contracting efforts, Justice O'Connor closed with these admonitions: Nothing we say today precludes a state or local entity from taking action to rectify the effects of identified discrimination within its jurisdiction. If the City of Richmond had evidence before it that non - minority contractors were systematically excluding minority businesses from subcontracting opportunities, it could take action to end the discriminatory exclusion. Where there is a significant statistical disparity between the number of qualified minority contractors willing and able to perform a particular service and the number of such contractors actually engaged by the locality or the locality's prime contractors, an inference of discriminatory exclusion could arise. Under such circumstances, the City could act to dismantle the closed business system by taking appropriate measures against those who discriminate based on race or other illegitimate criteria. In the extreme case, some form of narrowly tailored racial preference might be necessary to break down patterns of deliberate exclusion... Moreover, evidence of a pattern of individual discriminatory acts can, if supported by appropriate statistical proof, lend support to a local government's determination that broader remedial relief is justified .22 While much has been written about Croson, it is worth stressing what evidence was and was not before the Court. First, Richmond presented no evidence regard- ing the availability of MBEs to perform as prime contractors or subcontractors and no evidence of the utilization of minority-owned subcontractors on City con- tracts. 23 Nor did Richmond attempt to link the remedy it imposed to any evidence specific to the Program; it used the general population of the City rather than any measure of business availability. 20. See Grutter, 529 U.S. at 336-337 (quotas are not permitted; race must be used in a flexible, non-mechanical way). 21. Croson, 488 U.S. at 502. 22. Croson, 488 U.S. at 509 (citations omitted). 23. Id. at 502. 24 © 2020 Colette Halt & Associates, All Rights Reserved.