Revised City of South Bend Disparity Study Report

Home Browse Search

City of South Bend Disparity Study 2020 Asian -Americans and women."90 However, at least one court has held some quantum of evidence of discrimination for each group is sufficient; Croson does not require that each group included in the ordinance suffer equally from discrimination.91 Therefore, remedies should be limited to those firms owned by the relevant minority groups as established by the evidence that have suf- fered actual harm in the market area. 92 Next, the firm's owner(s) must be disadvantaged. The DBE Program's rebutta- ble presumptions of social and economic disadvantage, including the require- ment that the disadvantaged owners personal net worth not exceed a certain ceiling and that the firm must meet the Small Business Administration's size definitions for its industry, have been central to the courts' holdings that it is narrowly tailored 93 "[W]ealthy minority owners and wealthy minority-owned firms are excluded, and certification is available to persons who are not pre- sumptively [socially] disadvantaged but can demonstrate actual social and eco- nomic disadvantage. Thus, race is made relevant in the program, but it is not a determinative factor." 94 Further, anyone must be able to challenge the disad- vantaged status of any firm. 95 Evaluate the Burden on Third Parties Failure to make "neutral" changes to contracting and procurement policies and procedures that disadvantage M/WBEs and other small businesses may result in a findingthat the program unduly burdens non-M/WBEs96 However, "innocent" parties can be made to share some of the burden of the remedyfor eradicating racial discrimination. 7 The burden of compliance need not be placed only upon those firms directly responsible for the discrimination. The 90. Builders Association of Greater Chicago v. County of Cook, 256 F.3d 642, 646 (7th Cir. 2001) ("Cook In ). 91. Concrete Works IV, 321 F.3d at 971 (Denver introduced evidence of bias against each group; that is sufficient). 92. H. B. Rowe Co., Inc. v Tippett, 615 F.3d 233, 254 (4th Cir. 2010) ("[T]he statute contemplates participation goals only for those groups shown to have suffered discrimination. As such, North Carolina's statute differs from measures that have failed narrow tailoring for overinclusiveness."). 93. Sherbrooke, 345 F.3d at 973; see also Gruffer, 539 U.S. at 341; Adarand VII, 228 F.3d at 1183-1184 (personal net worth limit is element of narrow tailoring); cf. Associated General Contractors of Connecticut v City of New Haven, 791 F.Supp. 941, 948 (D. Conn. 1992), vacated on othergrounds, 41 F.3d 62 (2nd Cir. 1992) (definition of "disadvantage" was vague and unrelated to goal). 94. Sherbrooke, 345 F.3d. at 973. 95. 49 C.F.B. 426.87. 96. See Engineering Contractors Assoc. of South Florida, Inc. v Metropolitan Dade County, 943 F.Supp. 1546,1581-1582 (S.D. Fla. 1996) ("Engineering Contractors I") (County chose not to change its procurement system). 97. Concrete Works IV, 321 F.3d at 973; Wygont, 476 U.S. at 280-281; Adarand Vll, 228 F.3 at 1183 ("While there appears to be no serious burden on prime contractors, who are obviously compensated for any additional burden occasioned by the employment of DBE subcontractors, at the margin, some non -DBE subcontractors such as Adarand will be deprived of business opportunities"); cf. Northern Contracting II, at *5 ("Plaintiff has presented little evidence that is [sic] has suf- fered anything more than minimal revenue losses due to the program."). O 2020 Colette Holt & Associates, All Rights Reserved. 39