Revised City of South Bend Disparity Study Report

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City of South Bend Disparity Study 2020 Nor must the City demonstrate that the "ordinances will change discriminatory practices and policies" in the local market area; such a test would be "illogical" because firms could defeat the remedial efforts simply by refusing to cease discriminating. 46 Next, South Bend need not prove that private firms directly engaged in any dis- crimination in which the government passively participates do so intentionally, with the purpose of disadvantaging minorities and women. Denver's only burden was to introduce evidence which raised the inference of discriminatory exclusion in the local construction industry and link its spending to that discrimination.... Denver was under no burden to identify any specific practice or policy that resulted in discrimination. Neither was Denver required to demonstrate that the purpose of any such practice or policy was to disadvantage women or minorities. To impose such a burden on a municipality would be tantamount to requiring proof of discrimination and would eviscerate any reliance the municipality could place on statistical studies and anecdotal evidence. 7 Similarly, statistical evidence by its nature cannot identify the individuals responsible for the discrimination. 8 3. Examine the Results in South Bend's Unremediated Markets The results of contracts solicited without goals are an excellent indicator of whether discrimination continues to impact opportunities in public contract- ing. Evidence of race and gender discrimination in relevant "unremediated"49 markets provides an important indicator of what level of actual M/WBE partic- ipation can be expected in the absence of City mandated affirmative efforts to contract with M/WBEs.50 As the Eleventh Circuit has acknowledged, "the pro- gram at issue may itself be masking discrimination that might otherwise be occurring in the relevant market."51 If M/WBE utilization is below availability in unremediated markets, an inference of discrimination may be supportable. 46. Id. at 973 (emphasis In the original). 47. Id. at 971. 48. Id. at 973. 49. "Unremediated market" means "markets that do not have race -or gender -conscious subcontracting goals in place to remedy discrimination." Northern Contracting It, at `36. 50. See, e.g., Western States, 407 F.3d at 992 (Congress properly considered evidence of the "significant drop in racial minorities' participation in the construction industry" after state and local governments removed affirmative action pro- visions). 51. Engineering Contractors 11, 122 F.3d at 912. 0 2020 Colette Holt & Associates, All Rights Reserved. 31