Revised City of South Bend Disparity Study Report

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CCS of South Bend Disparity Study 2020 cific discriminatory policies and that those policies were more than a reflection of societal discrimination "30 South Bend need not prove that it is itself guilty of discrimination to meet its bur- den. In upholding Denver's M/WBE construction program, the court stated that Denver can show its compelling interest by "evidence of private discrimination in the local construction industry coupled with evidence that it has become a passive participant in that discrimination ... [by] linking its spending practices to the private discrimination."31 Denver further linked its award of public dollars to discrimina- tory conduct through the testimony of M/WBEs that identified general contractors who used them on City projects with M/WBE goals but refused to use them on pri- vate projects without goals. The following are the evidentiary elements courts have looked to in examining the basis for and determining the constitutional validity of race- and gender -conscious local programs and the steps in performing a disparity study necessary to meet those elements. 1. Define South Bend's Market Areas The first step is to determine the market areas in which the City operates. Cro- son states that a state or local government may only remedy discrimination within its own contracting market area. The City of Richmond was specifically faulted for including minority contractors from across the country in its pro- gram, based on national data considered by Congress. 32 The City must there- fore empirically establish the geographic and product dimensions of its contracting and procurement market area to ensure that the program meets strict scrutiny. This is a fact driven inquiry; it may or may not be the case that the market area is the government's jurisdictional boundaries. 33 A commonly accepted definition of geographic market area for disparity stud- ies is the locations that account for at least 75 percent of the agency's contract and subcontract dollar payments. 34 Likewise, the accepted approach is to ana- lyze those detailed industries that make up at least 75 percent of the prime contract and associated subcontract payments for the study period .35 This produces the utilization results within the geographic market area. 30. Concrete Works IV, 321 F.3d at 976. 31. Id. at 977. 32. Croson, 488 U.S. at 508. 33. Concrete Works 11, 36 F.3d at 1520 (to confine data to strict geographic boundaries would ignore "economic reality'). 34. National Academies of Sciences, Engineering, and Medicine 2010, Guidelines for Conducting a Disparity and Availability Studyfor the Federal DBE Program, p. 49. Washington, Dc: The National Academies Press. ttps://dol.org/10.17226/ 14346. ("National Disparity Study Guidelines"). 35. Id, at pp. 50-51. 0 2020 Colette Holt & Associates, All Rights Reserved. 27