Revised City of South Bend Disparity Study Report

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City of South Bend Disparity Study 2020 • The congruence between the remedies adopted and the beneficiaries of those remedies; • Any adverse impact of the relief on third parties; and • The duration of the program. 68 Consider Race- and Gender -Neutral Remedies Race- and gender -neutral approaches are necessary components of a defensi- ble and effective M/WBE program 69 and the failure to seriously consider such remedies has been fatal to several programs. 70 Difficulty in accessing procure- ment opportunities, restrictive bid specifications, excessive experience requirements, and overly burdensome insurance and/or bonding require- ments, for example, might be addressed by the City without resorting to the use of race or gender in its decision-making. Effective remedies include unbun- dling of contracts into smaller units, providing technical support, and develop- ing programs to address issues of financing, bonding, and insurance important to all small and emerging businesses. 71 Further, governments have a duty to ferret out and punish discrimination against minorities and women by their contractors, staff, lenders, bonding companies or others. 72 The requirement that the agency must meet the maximum feasible portion of the goal through race -neutral measures, as well as estimate that portion of the goal that it predicts will be met through such measures, has been central to the holdings that the DBE program regulations meet narrow tailoring. 73 However, strict scrutiny does not require that every race -neutral approach must be implemented and then proven ineffective before race -conscious rem- edies may be utilized .74 While an entity must give good faith consideration to race -neutral alternatives, "strict scrutiny does not require exhaustion of every possible such alternative... however irrational, costly, unreasonable, and 68. United States v. Paradise, 480 U.S. 149, 171 (1987); see also Sherbrooke, 345 F.3d at 971-972. 69. Croson, 488 U.S. at 507 (Richmond considered no alternatives to race -based quota); Associated General Contractors of Ohio v Drabik, 214 F.3d at 738 ("Drobik 11"); Philadelphia 111, 91 F.3d at 609 (City's failure to consider race�eutral alter- natives was particularly telling); Webster, 51 F.Supp.2d at 1380 (for over 20 years County never seriously considered race -neutral remedies); cf. Aiken, 37 F.3d at 1164 (failure to consider race -neutral method of promotions suggested a political rather than a remedial purpose). 70. See, e.g., Florida A.G.C. Council, Inc. ✓ State of Florida, Case No.: 4:03 -CV -59 -SPM at 10 (N. Dist. Fla. 2004) ("There Is absolutely no evidence in the record to suggest that the Defendants contemplated race -neutral means to accomplish the objectives" of the statute.); Engineering Contractors II, 122 F.3d at 928. 71. See 49 CFR§ 26.51.0. 72. Croson, 488 U.S. at 503 n.3; Webster, 51 F.Supp.2d at 1380. 73. See, e.g., Sherbrooke, 345 F.3d. at 973 74. Grutter, 529 U.S. at 339. 36 0 2020 Colette Holt & Associates, All Rights Reserved.