Revised City of South Bend Disparity Study Report

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City of South Bend Disparity Study 2020 The courts have held that the virtual disappearance of M/WBE participation after programs have been enjoined or abandoned strongly indicates substan- tial barriers to minority subcontractors, "raising the specter of racial discrimi- nation."52 Unremediated markets analysis addresses whether the government has been and continues to be a "passive participant" in such dis- crimination, in the absence of affirmative action remedies. 53 The court in the challenge to the City of Chicago's M/WBE program for construction contracts held that the "dramatic decline in the use of M/WBEs when an affirmative action program is terminated, and the paucity of use of such firms when no affirmative action program was ever initiated," was proof of the City's compel- ling interest in employing race- and gender -conscious measures. 54 Evidence of unremediated markets "sharpens the picture of local market conditions for MBEs and WBEs."S5 Therefore, if M/WBEs are "overutilized" because of the entity's program, that does not end the study's inquiry. Where the government has been implement- ing affirmative action remedies, M/WBE utilization reflects those efforts; it does not signal the end of discrimination. Any M/WBE "overutilization" on projects with goals goes only to the weight of the evidence because it reflects the effects of a remedial program. For example, Denver presented evidence that goals and non -goals projects were similar in purpose and scope and that the same pool of contractors worked on both types. "Particularly persuasive" was evidence that M/WBE participation declined significantly when the pro- gram was amended in 1989; the utilization of M/WBEs on City projects had been affected by the affirmative action programs that have been in place in one form or another since 1977. 4. Analyze Economy -Wide Evidence of Race- and Gender -Based Disparities The courts have repeatedly held that analysis of disparities in the rates at which M/WBEs in the government's markets form businesses compared to similar non-M/WBEs, their earnings from such businesses, and their access to capital markets are highly relevant to the determination of whether the mar- ket functions properly for all firms regardless of the race or gender of their 52. Adarand VII, 228 F.3d at 1174. 53. See also Contractors Association of Eastern Pennsylvania v City of Philadelphia, 91 F.3d 586, 599-601 (3rd Or. 1996) ("Philadelphia Ill-). 54. Builders Association of Greater Chicago v. City of Chicago, 298 F. Supp.2d 725, 737 (N.D. 111. 2003); (holding that City of Chicago's M/WBE program for local construction contracts met compelling interest using this framework); see also Con- crete Works IV, 321 F.3d at 987-988. 55. Concrete Works 11, 36 F.3d at 1529. 32 9 2020 Colette Holt & Associates, All Rights Reserved.