Revised City of South Bend Disparity Study Report

Home Browse Search

City of South Bend Disparity Study 2020 While strict scrutiny is designed to require clear articulation of the evidentiary basis for race -based decision-making and careful adoption of remedies to address discrimination, it is not, as Justice O'Connor stressed, an impossible test that no proof can meet. Strict scrutiny need not be "fatal in fact." C. Establishing a "Strong Basis in Evidence" for South Bend's Minority- and Women -Owned Business Enterprise Program The case law on the DBE program should guide the City's program for locally - funded contracts. As discussed, 49 C.F.R. Part 26 has been upheld by every court, and local programs for Minority- and Women -Owned Business Enterprises ("M/ WBEs") will be judged against this legal framework .27 We note that programs for veterans, persons with disabilities or truly race- and gender -neutral small business efforts are not subject to strict scrutiny and no evidence comparable to that in a disparity study is needed to enact such initiatives. While Congress evaluated the evidence of discrimination against M/WBEs in the federal marketplace, a local agency must conduct its own fact finding. It is well established that disparities between an agency's utilization of M/WBEs and their availability in the relevant marketplace provide a sufficient basis for the consider- ation of race- or gender -conscious remedies. Proof of the disparate imparts of economic factors on M/WBEs and the disparate treatment of such firms by actors critical to their success will meet strict scrutiny. Discrimination must be shown using statistics and economic models to examine the effects of systems or markets on different groups, as well as by evidence of personal experiences with discrimi- natory conduct, policies or systems. 28 Specific evidence of discrimination or its absence may be direct or circumstantial and should include economic factors and opportunities in the private sector affecting the success of M/WBEs.29 Croson's admonition that "mere societal" discrimination is not enough to meet strict scrutiny is met where the government presents evidence of discrimination in the industry targeted by the program. "If such evidence is presented, it is immate- rial for constitutional purposes whether the industry discrimination springs from widespread discriminatory attitudes shared bysociety or is the product of policies, practices, and attitudes unique to the industry... The genesis of the identified dis- crimination is irrelevant." There is no requirement to "show the existence of spe- 27. Midwest Fence Corp. v US Department of Transportation, Illinois Department of Transportation, Illinois State Toll High- way Authority, 840 F.3d 953 (7th Cir. 2016) ("Midwest Fence ll"). 28. Adarand VII, 228 F.3d at 1166 ("statistical and anecdotal evidence are appropriate'). 29. Id. 26 © 2020 Colette Holt & Associates, All Rights Reserved.