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City of South Bend Disparity Study 2020 <br />competitive industry with tight profit margins, considerable <br />hazards, and strict bonding and insurance requirements. 102 <br />6. Examine the Duration and Review of the Program <br />Race -based programs must have duration limits. A race -based remedy must <br />,not last longer than the discriminatory effects it is designed to eliminate." 103 <br />The unlimited duration and lack of review were factors in the court's holding <br />that the City of Chicago's M/WBE construction program was no longer nar- <br />rowly tailored; Chicago's program was based on 14 -year-old information, <br />which while it supported the program adopted in 1990, no longer was suffi- <br />cient standing alone tojustify the City's efforts in 2004.104 How old is too old <br />is not definitively answered,105 but governments would be wise to analyze <br />data at least once every five or six years. <br />In contrast, the USDOT DBE program's periodic review by Congress has been <br />repeatedly held to provide adequate durational limits.106 Similarly, "two facts <br />[were] particularly compelling in establishing that [North Carolina's M/WBE <br />program] was narrowly tailored: the statute's provisions (1) setting a specific <br />expiration date and (2) requiring a new disparity study every five years." 107 <br />102. Northern Contracting 11, 2005 U.S. Dist. LEXIS 19868 at 74. <br />103. Adamnd ill, 515 U.S. at 238. <br />104. BAGC v Chicago, 298 F.Supa2d at 739. <br />105. See, e.g., Associated General Contractors of Ohio, Inc. v Drabik, 50 F.Supp.2d 741, 747, 750 (S.D. Ohio 1999) ("Drabik I") <br />("A program of race -based benefits cannot be supported by evidence of discrimination which is now over twenty years <br />old.... The state conceded that it had no additional evidence of discrimination against minority contractors, and admit- <br />ted that during the nearly two decades the Act has been In effect, it has made no effort to determine whether there is a <br />continuing need for a race -based remedy."); Brunet v. City of Columbus, 1 F.3d 390, 409 (6th Cir. 1993), cert. denied sub <br />nom Brunet v. Tucker, 510 U.S. 1164 (1994) (fourteen -year-old evidence of discrimination "too remote to support a <br />compelling governmental Interest."). <br />106. See Western States, 407 F.3d at 995. <br />107. Rowe, 615 F.3d at 253. <br />O 2020 Colette Holt & Associates, All Rights Reserved. 41 <br />