Revised City of South Bend Disparity Study Report

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CCS of South Bend Disparity Study 2020 anecdotal evidence might make the pivotal difference in some cases; indeed, in an exceptional case, we do not rule out the possibility that evidence not reinforced by statistical evidence, as such, will be enough .,,63 There is no requirement that anecdotal testimony be "verified" or corrobo- rated, as befits the role of evidence in legislative decision-making as opposed to judicial proceedings. "Plaintiff offers no rationale as to why a fact finder could not rely on the State's 'unverified' anecdotal data. Indeed, a fact finder could very well conclude that anecdotal evidence need not—indeed cannot—be verified because it nothing more than a witness' narrative of an incident told from the witness' perspective and including the witness' perception."64 Likewise, the Tenth Circuit held that "Denver was not required to present cor- roborating evidence and [plaintiff] was free to present its own witnesses to either refute the incidents described by Denver's witnesses or to relate their own perceptions on discrimination in the Denver construction industry." 65 D. Narrowly Tailoring a Minority -Owned and Women - Owned Business Enterprise Procurement Program for South Bend Even if the City has a strong basis in evidence to believe that race -based measures are needed to remedy identified discrimination, the program must still be nar- rowly tailored to that evidence. As discussed above, programs that closely mirror those of the U.S. Department of Transportation's Disadvantaged Business Enter- prise program 66 have been upheld using that framework .67 The courts have repeatedly examined the following factors in determining whether race -based remedies are narrowly tailored to achieve their purpose: • The efficacy of race -neutral remedies at overcoming identified discrimination; • The relationship of numerical benchmarks for government spending to the availability of minority- and women -owned firms and to subcontracting goal setting procedures; • The flexibility of the program requirements, including the provision for good faith efforts to meet goals and contract specific goal setting procedures; 63. Engineering Contractors it, 122 F.3d at 926. 64. Id. at 249. 65. Concrete Works IV, 321 F.3d at 989. 66. 49 C.F.R. Part 26. 67. See, e.g., Midwest Fence ll, 840 F.3d at 953 (upholding the Illinois Tollway's program for state -funded contracts mod- elled after Part 26 and based on CHA's expert testimony). 0 2020 Colette Holt & Associates, All Rights Reserved. 35