Revised City of South Bend Disparity Study Report

Home Browse Search

CCS of South Bend Disparity Study 2020 Some commentators have taken this dearth of any particularized proof and argued that only the most particularized proof can suffice in all cases. They leap from the Court's rejection of Richmond's reliance on only the percentage of Blacks in the City's population to a requirement that only firms that bid or have the "capacity" or "willingness" to bid on a particular contract at a particular time can be considered in determining whether discrimination against Black businesses infects the local economy. 24 This contention has been rejected explicitly by some courts. For example, in deny- ing the plaintiff's summaryjudgment motion to enjoin the City of New York's M/ WBE construction ordinance, the court stated that: [I]t is important to remember what the Croson plurality opinion did and did not decide. The Richmond program, which the Croson Court struck down, was insufficient because it was based on a comparison of the minority population in its entirety in Richmond, Virginia (50%) with the number of contracts awarded to minority businesses (67%). There were no statistics presented regarding number of minority-owned contractors in the Richmond area, Croson, 488 U.S. at 499, and the Supreme Court was concerned with the gross generality of the statistics used in justifying the Richmond program. There is no indication that the statistical analysis performed by [the consultant] in the present case, which does contain statistics regarding minority contractors in New York City, is not sufficient as a matter of law under Croson. 25 Further, Richmond made no attempt to narrowly tailor a goal for the procurement at issue that reflected the reality of the project. Arbitrary quotas, and the unyield- ing application of those quotas, did not support the stated objective of ensuring equal access to City contracting opportunities. The Croson Court said nothing about the constitutionality of flexible subcontracting goals based upon the avail- ability of MBEs to perform the scopes of the contract in the government's local market area. In contrast, the USDOT DBE Program avoids these pitfalls. 49 C.F.R. Part 26 "provides for a flexible system of contracting goals that contrasts sharply with the rigid quotas invalidated in Croson."26 24. See, e.g., Northern Contracting lll, 473 F.3d at 723. 25. North Shore Concrete and Associates, Inc. v. Cityof New York, 1998 U.S. Dist. Lexis 6785, •28-29 (E.D. N.Y. 1998); see also Harrison & Burrowes Bridge Constructors, Inc. v Cuomo, 981 F.2d 50, 61-62 (2nd Cir. 1992) ("Croson made only broad pronouncements concerning the findings necessary to support a state's affirmative action plan"); cf. Concrete Works it, 36 F.3d at 1528 (City may rely on "data reflecting the number of MBEs and WBEs in the marketplace to defeat the chal- lenger's summary judgment motion'). 26. Western States Paving Co., Inc. v Washington Department of Transportation, 407 F.3d 983, 994 (9th Cir. 2005), cert. denied, 546 U.S. 1170 (2006). 01010 Colette Holt & Associates, All Rights Reserved. 25