Disparity Studies

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Disparity Studies

• A necessary predicate for action

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The request (excerpt)
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The request (excerpt continued)
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City of Richmond, Appellantv. J.A. Croson
Company 1989

• If the city of Richmond had evidence before it
  that nonminority contractors were systematically
  excluding minority businesses from subcontracting
  opportunities it could take action to end the
  discriminatory exclusion. Where there is a
  significant statistical disparity between the
  number of qualified minority contractors willing
  and able to perform a particular service and the
  number of such contractors actually engaged by
  the locality or the locality's prime contractors,
  an inference of discriminatory exclusion could
  arise.

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Adarand Constructors, Inc. v. Pena 1995

• It follows from that principle that all
  governmental action based on race--a group
  classification long recognized as "in most
  circumstances irrelevant and therefore
  prohibited," Hirabayashi, 320 U.S. at 100, should
  be subjected to detailed judicial inquiry to
  ensure that the personal right to equal
  protection of the laws has not been infringed.
  These ideas have long been central to this
  Court's understanding of equal protection, and
  holding "benign" state and federal racial
  classifications to different standards does not
  square with them. "

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Adarand Constructors, Inc. V. Pena

• Accordingly, we hold today that all racial
  classifications, imposed by whatever federal,
  state, or local governmental actor, must be
  analyzed by a reviewing court under strict
  scrutiny. In other words, such classifications
  are constitutional only if they are narrowly
  tailored measures that further compelling
  governmental interests.

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Croson Result in the 11th Circuit

• In this circuit, we have identified four factors
  that should be taken into account when evaluating
  whether a race- or ethnicity-conscious
  affirmative action program is narrowly tailored
• In making this evaluation, we consider (1) the
  necessity for the relief and the efficacy of
  alternative remedies (2) the flexibility and
  duration of the relief, including the
  availability of waiver provisions (3) the
  relationship of numerical goals to the relevant
  labor market and (4) the impact of the relief
  on the rights of innocent third parties.
  ENGINEERING CONTRACTORS ASSOCIATION OF SOUTH
  FLORIDA INC (1997)

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Compelling Governmental interest

• Strict scrutiny for race based programs
• Statistical evidence must be based upon proper
  methods and data
• Must account for other factors that impact
  utilization
• Anecdotal evidence of little value

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Florida A.G.C. Council, Inc. v. Florida 2004

• The Court followed Croson precedent and held that
  where there is a significant disparity between
  the number of minority contractors willing and
  able to perform a particular service and the
  number of such contractors actually engaged by
  the locality or the localitys prime contractors,
  an inference of discriminatory exclusion could
  arise. Florida A.G.C. at 315 quoting Croson,
  488 U.S. at 509. But the Court did not find the
  legislatures spending goals to fall into that
  constitutional exception because there was no
  proof of a disparity. Therefore following
  Croson, the court held the minority program
  unconstitutional because it was not narrowly
  tailored to serve a compelling government
  purpose, and it therefore violated the Equal
  Protection Clause of the Fourteenth Amendment.
  Florida A.G.C. at 316.

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Virdi v. DeKalb County School District 2005

• The court held the MVP unconstitutional because
  it was not narrowly tailored there was no
  evidence that the District considered
  race-neutral alternative means of tracking its
  activities to avoid unwitting discrimination, and
  the MVPs racial goals were of unlimited
  duration.

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Hershell Gill Consulting Engineers, Inc., v.
Miami-Dade County 2005

• Non-minority engineering firms brought an action
  against Miami-Dade County challenging the
  constitutionality of their minority and women
  business enterprise program (MWBE) which
  established participation goals for minority and
  women business enterprises in awarding county
  architectural and engineering contracts. The
  Court found the program unconstitutional because
  it was not narrowly tailored to pass strict
  scrutiny. The court found the statistical survey
  results were unreliable, inaccurate, and
  unpersuasive, and therefore did not constitute a
  strong basis in evidence to pass strict
  scrutiny.

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Requirements to act

• Statistical evidence of discrimination must show
  that either the governments own actions resulted
  in a significant disparity in purchasing, or that
  the government was a passive participant in
  discriminatory practices of private industry.
• The disparity study must control for race and
  ethnic neutral factors such as company size,
  financial capacity, etc. that would account for
  the statistical disparities.
• The statistics used must be deemed reliable
  superficial analysis will not suffice.
• The government must seriously undertake race and
  ethnic neutral efforts in an attempt to rectify
  any desperate treatment.
• Any race or ethnic specific goals must be
  substantially related to the relevant market.
• If adopted, any such purchasing program must be
  implemented in a flexible manner.
• The program must have a finite duration.