Revised City of South Bend Disparity Study Report

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City of South Bend Disparity Study 2020 ally meant bonding limits, firm size, firm revenues, and prior experience on agency projects (no argument has been made outside of the construction industry). This test has been rejected by the courts when directly addressed by the plaintiff and the agency. As recognized by the courts and the National Model Disparity Study Guidelines, size and experience are not race- and gen- der -neutral variables. Discriminatory barriers depress the formation of firms by minorities and women, and the success of such firms in doing business in both the private and public sectors. It is these types of "capacity" variables where barriers to full and fair opportunities to compete will be manifested. Based on expert testimony, judges understand that factors such as size and experience are not race- and gender -neutral variables: "M/WBE construction firms are generally smaller and less experienced because of discrimination."42 Capacity limitations on availability would import the current effects of past discrimina- tion into the model, because if M/WBEs are newer or smaller because of dis- crimination, then controlling for those variables will mask the phenomenon of discrimination that is being studied. In short, identifiable indicators of capacity are themselves impacted and reflect discrimination. To rebut this inference, a plaintiff must proffer its own study showing that the disparities disappear when such variables are held constant and that controlling for firm specializa- tion explained the disparities. 43 Additionally, Croson does not "require dispar- ity studies that measure whether construction firms are able to perform a particular contract."44 Capacity variables should be examined at the economy -wide level of business formation and earnings, discussed below, not at the first stage of the analysis, to reduce the downward bias that discrimination imposes on M/WBEs' avail- ability and the upward bias enjoyed by non-M/WBEs. South Bend need not prove that the statistical inferences of discrimination are "correct." In upholding Denver's M/WBE Program, the Tenth Circuit noted that strong evidence supporting Denver's determination that remedial action was necessary need not have been based upon "irrefutable or definitive" proof of discrimination. Statistical evidence creating inferences of discriminatory motivations was sufficient and therefore evidence of market area discrimina- tion was properly used to meet strict scrutiny. To rebut this type of evidence, the plaintiff must prove by a preponderance of the evidence that such proof does not support those inferences. 45 42. Concrete Works IV, 321 F.3d at 983 (emphasis In the original). 43. Conjecture and unsupported criticism of the government are not enough. The plaintiff must rebut the govern me nt'sevi- dence and introduce "credible, particularized evidence" of its own. See Midwest Fence Il, 840 F.3d 942 (7th Cir. 2016) (upholding the II IInois Tollway's program for state -funded contracts modeled after Part 26 and based on CHA's expert testimony). 44. Croson, 488 U.S. at 508 (emphasis In the original). 45. Concrete Works IV, 321 F. 3d at 971. 30 0 2020 Colette Holt & Associates, All Rights Reserved.