Revised City of South Bend Disparity Study Report

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CCS of South Bend Disparity Study 2020 Not only is this legally mandated '83 but this approach also reduces the need to conduct good faith efforts reviews, as well as the temptation to create "front" companies and sham participation to meet unreasonable contract goals. While this is more labor intensive than defaulting to the annual, overall goals, there is no option to avoid meeting narrow tailoring because to do so would be more burdensome. 3. Ensure Flexibility of Goals and Requirements It is imperative that remedies not operate as fixed quotas. 84 A M/WBE pro- gram must provide for contract awards to firms who fail to meet the contract goals but make good faith efforts to do so. 85 Further, firms that meet the goals cannot be favored over those who made good faith efforts. In Croson, the Court refers approvingly to the contract -by -contract waivers used in the USDOT's DBE program. 86 This feature has been central to the holding that the DBE program meets the narrow tailoring requirement. 87 4. Review Program Eligibility Over -Inclusiveness and Under - Inclusiveness The over- or under -inclusiveness of those persons to be included in the City's program is an additional consideration and addresses whether the remedies truly target the evil identified. The "fit" between the problem and the remedy manifests in three ways: which groups to include, how to define those groups, and which persons will be eligible to be included within those groups. The groups to include must be based upon the evidence.88 The "random inclu- sion" of ethnic or racial groups that may never have experienced discrimina- tion in the entity's market area may indicate impermissible "racial politics". 9 In striking dawn Cook County, Illinois' construction program, the Seventh Cir- cuit remarked that a "state or local government that has discriminated just against blacks may not by way of remedy discriminate in favor of blacks and 83. See Sherbrooke, 345 F.3d at 972; Coral Construction, 941 F.2d at 924. 84. See 49 C.F.R 26.43 (quotas are not permitted and setaside contracts maybe used only in limited and extreme circum- stances "when no at her method could be reasonably expected to redress egregious instances of discrimination"). 85. See, e.g., BAGC v Chicago, 298 F. Supp.2d at 740 ("Waivers are rarely or never granted ... The City program is a rigid numerical quota ... formulistic percentages cannot survive strict scrutiny."). 86. Croson, 488 U.S. at 508; see also Adarand VII, 228 F.3d at 1181. 87. See, e.g., Sherbrooke, 345 F.3d. at 972; Webster, 51 F. Supp. 2d 1354, 1380. 88. Contractors Association of Eastern Pennsylvania v. City of Philadelphia, 6 F.3d 990,1007-1008 (3rd Cir. 1993) ("Philadel- phia II") (strict scrutiny requires data for each minority group; data was insufficientto Include Hispanics, Asians or Native Americans). 89. Webster, 51 F.Supp.2d at 1380-1381. 38 0 2020 Colette Holt & Associates, All Rights Reserved.