Revised City of South Bend Disparity Study Report

Home Browse Search

III. QUALITATIVE EVIDENCE OF RACE AND GENDER BARRIERS IN THE CITY OF SOUTH BEND'S MARKET In addition to quantitative data, a disparity study should further explore anecdotal evi- dence of experiences with discrimination in contracting opportunities and the City of South Bend. This evidence is relevant to the question of whether observed statistical disparities are due to discrimination and not to some other non-discriminatory cause or causes, as well as the likely efficacy of any race- and gender -neutral remedies employed by the City. As discussed in Chapter II, this type of anecdotal data has been held by the courts to be relevant and probative under the Fourteenth Amendment of whether the City has a "strong basis in evidence' to enact a race- and gender -con- scious program, and if so, what narrowly tailored remedies are supportable to reduce the effects of past and current discrimination, and create a level playing field for con- tract opportunities for all firms. The Supreme Court has held that anecdotal evidence can be persuasive because it "brought the cold [statistics] convincingly to life.."108 Evidence about discriminatory practices engaged in by prime contractors, agency personnel, and other actors rele- vant to business opportunities has been found relevant regarding barriers both to minority firms' business formation and to their success on governmental projects. 109 While anecdotal evidence is insufficient standing alone, "[p]ersonal accounts of actual discrimination or the effects of discriminatory practices may, however, vividly comple- ment empirical evidence. Moreover, anecdotal evidence of a [government's] institu- tional practices that exacerbate discriminatory market conditions are [sic] often particularly probative."110 "[W]e do not set out a categorical rule that every case must rise or fall entirely on the sufficiency of the numbers. To the contrary, anecdotal evi- dence 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 evi- dence, as such, will be enough"111 108. International Brotherhood of Teamsters v United States, 431 U.S. 324, 399 (1977). 109. Adarand Constructors, Inc. v. Slater, 228 F.3d 1147, 1168-1172 (10th Cir. 2000), cert. granted, 532 U.S. 941, then dis- missed as improvidently granted, 534 U.S. 103 (2001) ("Adarand Vll"). 110. Concrete Works of Colorado, Inc. v City and County of Denver, 36 F.3d 1513, 1120, 1530 (10th Cir. 1994) ("Concrete Works )N). 0 2020 Colette Holt & Associates, All Rights Reserved. 43