Hearing on Use of Racial Preferences in Public Contracting

104TH CONGRESS
COMMITTEE ON THE JUDICIARY
TESTIMONY OF GEORGE R. LA NOUE, PROFESSOR OF POLITICAL SCIENCE -UMBC
DIRECTOR POLICY SCIENCES GRADUATE PROGRAM
DIRECTOR PROJECT ON CIVIL RIGHTS AND PUBLIC CONTRACTS
UNIVERSITY OF MARYLAND GRADUATE SCHOOL, BALTIMORE
SUBCOMMITTEE ON THE CONSTITUTION WITH THE U.S. SENATE COMMITTEE ON THE JUDICIARY SUBCOMMITTEE ON CONSTITUTION, FEDERALISM, AND PROPERTY RIGHTS
U.S. HOUSE OF REPRESENTATIVES
OCTOBER 19, 1995


Evidentiary Basis for the Use of Racial Preferences in Public Contracting After Croson and Adarand

 

My name is George R. La Noue. I am the Director of the Policy Sciences Graduate Program and the Director of the Project on Civil Rights and Public Contracts of the University of Maryland Graduate School, Baltimore (UMBQ. The Project is the largest publicly accessible database of materials on minority business enterprise (MBE) programs in the country, encompassing more than 45,000 pages of published and unpublished court cases, disparity studies, and research articles. (A list of the disparity studies in our collection is in Appendix A. The Project's publications are listed in Appendix B.) In addition, I have served as a consultant to the state of Texas, the city of Albuquerque, and a consortium of governments in Oregon in connection with the development of their disparity studies and MBE programs. Finally, I have served as trial expert for plaintiffs in challenges to racial preferences in contracting programs in Dade County, Florida, Columbus, Ohio, and Philadelphia, Pennsylvania (Eastern Contractors Association v. City of Philadelphia). The latter case, the first to be decided after full discovery and trial, resulted in the striking down of the MBE program by a federal district court on the grounds that the factual predicate underlying the program was incomplete and flawed.

 

What I want to discuss today is the response of state and local jurisdictions to the 1989 Supreme Court City of Richmond v. Croson decision and the implications of that response for the future of federal MBE programs.

 

In Adarand v. Penna, decided this summer, the Supreme Court announced a single standard for evaluating public contracting programs that classify businesses by race or ethnicity and provide preference to some of them. Federal, state, and local MBE programs were all to be subjected to strict scrutiny. The Court instructed lower courts to treat these programs with skepticism, consistency, and congruence. There is no deference to federal programs in this decision and the opinion in Miller v. Johnson, the voting rights case handed down a few weeks later, further reinforces the Court's insistence that where racial classifications are involved, the judiciary must independently evaluate the actions of legislatures and bureaucracies.

 

Together these decisions mean that all federal NIBE programs that survive legislative and administrative review will sooner or later be subject to judicial review where the standard is strict scrutiny. This suggests that examination of state and local responses to Croson is important in determining the appropriate course of federal action.

 

Croson, and therefore, Adarand, establishes that racial preferences can only be sustained if they are narrowly-tailored remedies for carefully identified discrimination and then, only if race-neutral measures are not effective. For example, if there were instances of a defective procurement system, such as excessive bonding requirements that had an adverse impact on MBEs, the narrowly-tailored race-neutral solution would be to lower the bonding threshold. Or, if a particular procurement officer abused his authority by discriminating, the narrowly- tailored, race-neutral solution would be to sanction the procurement officer. Croson speaks of the use of racial preferences as remedies as "extreme measures." The district court in Eastern Contractors called them "last resorts."

Unfortunately, in too many governmental programs at all levels, the use of racial preferences was the toot of first resort and often not in response to any reasonable claim of racial discrimination. As Drew Days wrote in the Yale Law Journal two years before the Supreme Court's Croson decision:

 

Specifically, I find myself asking whether Congress and the Supreme Court, in enacting and approving the Public Works Employment Act, established standards for the formulation and judicial review of minority set-aside programs that, constitutionality aside, fall below those we ought to employ, given our justifiable national sensitivity to racial classifications. These concerns multiply at the prospect of the proliferation of minority set-aside programs at the state and local levels even though they, too, may be fully explicable and constitutionally permissible responses to patterns of discrimination against minority contractors. . . . it is essential that state and local agencies also establish the presence of discrimination in their own bailiwicks, based either upon their own fact-finding processes or upon determinations made by other competent institutions, such as courts and administrative agencies. (Drew S. Days, III, "Fullilove," 96 Yale Law Journal!, 453, 456, 480-81 (1987).

 

Because state and local MBE programs were not tied to any specific finding of discrimination, they led to such anomalies as the inclusion of Eskimos and Aleuts in the Richmond, Virginia MBE program, although there were no construction businesses owned by Eskimos and Aleuts in the City. Richmond had simply unthinkingly imitated the federal categories of minority groups. Today the Richmond MBE program includes only African -Americans.

 

State and Local Disparity Studies

 

After the Croson decision, many state and local jurisdictions examined their MBE programs and discovered that they could not begin to meet the new judicial standards. Some governments dropped or modified their programs. Some pretended Croson did not apply to them and did nothing. Others began to commission what are now called "disparity studies." These studies are purportedly based on Justice O'Connor's language in Croson that set certain conditions for the statistical analysis of discrimination. She said:

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. (488 U.S. 469, 509)

 

To date more than 100 disparity studies have been completed at an estimated cost of $45,000,000. This amount may be the largest sum ever spent on social science related research in our nation's history. Some of the disparity studies have had large infusions of federal funds, including 13 studies in the Project's collection which were funded in part by the Federal Transit Administration.

 

I have criticized disparity studies in other formats (see Appendix B, particularly "Standards for the Second Generation of Croson-Inspired Disparity Studies!' The Urban Lav,,3Kr. Vol. 26, No 3, Summer 1994.) and will not do so in detail here. But suffice it to say that often in the consulting business, the consultant is expected to provide support for the policy objectives for which the client has already made a commitment. Social scientists call this "results driven research" and the documents produced are more often briefs for the MBE program than an independent inquiry into the existence of discrimination. Such studies are not consistent with the standards set by the courts. As federal district court judge James Graham declared:

 

A municipality that is considering the enactment of legislation that creates race-based and gender-based preferences in the award of public contracts must, in fairness to all of its citizens, fairly and fully investigate the issue of whether or not discrimination has actually occurred in the employment of minorities and females in the construction industry in its community and whether such discrimination has actually occurred in its award of contracts and in the award of subcontracts by the prime contractors it has employed. Only if a thorough and impartial investigation of the facts supports a finding that discrimination has occurred is the municipality justified in considering a scheme in which some of its citizens and firms are excluded from competing for a portion of its total contract dollars.

 

The Associated General Contractors of America v. City of Columbus, Ohio, Order June 20, 1990, p. 10.

(See also the comments on the flaws in the study conducted for the City of Philadelphia by Dr. Andrew Brimmer, pointed out by the Court in Contractors Association. Dr Brimmer later told the Wall Street Journal (June 14, 1995) that the 15% goal the city was using was "picked out of the air.")

 

To be fair, governments often have not kept accurate data from which statistical analysis could be performed. Further proving discrimination in modem America would be a complex undertaking even with very good data. Even so, most disparity studies are filled with flaws that could have been avoided, but have not been because the client, for political reasons, wanted a document that would sustain or expand an MBE program.

 

All of these problems may be replicated at the federal level, if there is an attempt to do federal versions of disparity studies. Should that occur, it will not only result in a waste of money, but the promulgation of findings of discrimination through disparity studies which are inaccurate or exaggerated, and which have an enormous negative impact on society. Such findings cause the accused to engage in broad denials, even where there is a need for some remedies. Those in the class declared "victims" may be discouraged from ever entering a particular line of business if they believe it to be rife with racism. Other persons may attribute incorrectly their failures to discrimination and may not recognize the need to improve some of their own practices. Finally, governments can only solve problems if they are diagnosed accurately. If the rate of MBE participation in public contracting is thought to be caused by discrimination, when it is in fact caused by something else, then the remedy is likely to be ineffective and unfair.

I want to comment on some of the key problems that have emerged in the disparity studies to date by examining the two major components of evidence assembled — statistical and anecdotal.

 

Statistical analysis

 

Justice O'Connor's statistical test, as quoted above, is very carefully worded. The test identifies several crucial requirements which must be satisfied if a public body desires to use statistical analysis to justify the use of racial classifications in public contracting.

 

1. In comparing participation rates, the universe of MWBEs and majority contractors should be similarly "qualified," and "willing and able." Mere headcounts of contractors located within or near a jurisdiction are not enough.

 

2. The businesses to be compared must be able to perform the same services. Companies compete for contracts only with others offering similar services. Government agencies contract for particular services. Consequently, comparisons that put companies offering distinctively different services in the same availability pool, or include businesses that do not offer services that a government purchases, are inconsistent with the Croson test.

 

3. There must be "a significant statistical disparity." This means more than just applying a statistical significance test to determine whether a result could have occurred by chance.

 

Spurious statistical conclusions drawn on small or otherwise inadequate samples or using inappropriate mathematical concepts are not justifications for instituting governmental racial classifications. Nor are disparities that are small or that appear only in certain measures at certain times sufficient. To justify a race-based remedial program, the statistics must provide evidence of significant systematic exclusion.

 

4. Statistics can provide only "an inference of discriminatory exclusion." Without more information, they usually cannot identify the source of discrimination or provide a basis for a "narrowly-tailored" remedy.

 

What has happened instead in the overwhelming number of disparity studies is that Justice O'Connor's conditions for statistical analysis have been ignored either because the data did not exist to do this kind of analysis or because the results of a properly conducted study would not have supported the need for an MBE program. Instead of comparing the number of qualified, willing and able businesses owned by different groups, studies have substituted headcounts based on census data or vendor lists. Instead of examining availability to perform in Croson's words, "a particular service," the studies have combined all purchases into large categories such as construction, commodities, and professional services to create disparity ratios based on the total dollars awarded each group.

 

This approach is misleading and biased for several reasons. As a generalization, MBEs are smaller and newer businesses, and therefore, relatively less qualified and less able than non-MBEs to compete for large government contracts. Therefore, when disparities exist using the headcount technique, what may be shown is that smaller businesses receive smaller contracts than large businesses, not that MBEs are being discriminated against. (See Michigan Road Builders v. Blanchard, 834 F.2d 583, 592, O'Donnell v. District of Columbia, 963 F.2d 420,426 and Concrete Works v Denver 36 F3d 1513, 1528 for Circuit Court warnings against making the mistake of finding discrimination without considering the sizes of businesses.) The need to consider the different qualifications of businesses in calculating disparities has been emphasized over and over by the courts (Appendix Q, but disparity studies continue to ignore qualifications and treat all firms as though they were equal competitors. Also, combining different services into overinclusive analytical categories may mask the fact that a disparity may exist for some types of services within the category, but not for others, thus inhibiting the development of a narrowly-tailored remedy. There is no reason to assume that if accountants are discriminated against that engineers will be as well, although they are both loosely in the professional services category. Furthermore, if MBEs are disproportionately represented in some service categories, but not others, and government purchases go to categories with a lower MBE presence, then what may look like a disparity caused by discrimination really is just caused by the government purchasing pattern. Dr. Richard Boyle of the University of New Mexico, found, for example, that while MBEs are 5.6 % of the nation's construction businesses, they tend to be distributed in the sectors of the construction industry (the trades rather than in heavy and highway construction). Consequently, given government purchasing patterns, MBEs, if receiving proportionate amounts with the specialties in which they exist would only receive 3.4 % of the dollars. Without accounting for specialties, the result might look like discrimination when in fact, it is not.

 

Possible Federal Disparity Study

 

A federal disparity study would face formidable challenges in data gathering and analysis. The federal government makes purchases of almost every "particular service" imaginable, so there would have to be many disparity ratios calculated and it would be unlikely that the results would be consistent. For example, in the recent Texas state disparity study, women were found to be underutilized in the general and special trades construction category, but overutilized in the heavy and highway category. Making a single category of construction would have obscured that reality.

 

Defining and measuring which firms had the qualifications and capacities necessary for federal contracting for particular services would be extremely complex and there is no readily available data source. Census data is a compendium of all existing firms. It cannot be used to determine how many firms are "qualified, willing or able" for federal contracting.

 

It is now well established legally that statistical evidence must be produced for each group included in an MBE program. When many localities have conducted their studies, the data has shown some previously included groups were not underutilized at all or at least were not underutilized regarding some services. If there is no specific statistical evidence of discrimination for a specific group, that group cannot be included in a preference program.

 

The federal record regarding which groups were entitled to MBE preferential status is filled with political considerations with almost no factual data. ("Presumptions for Preferences: The Small Business Administration's Decisions on Groups Entitled to Affirmative Action," with John Sullivan, Journal of Policy HistM, Vol. 6, No. 4, Fall 1994.) Establishing a record of discrimination related to federal contracting for each specific group included in current MBE programs would be a very substantial task. It is also not clear that the broad categories, for example, Hispanic or Asian American, which are actually composites of national origin groups with very different histories and socioeconomic status in the United States, is any longer defensible. Furthermore, an increasing number of Americans are in fact multiracial or multiethnic and are insisting that they be classified in that way.

Any national study would have to be a generalization based on very different fact patterns drawn from various local markets.

It is very unlikely that the market or the relevant ethnic groups are the same in New Mexico, in Alaska, in Hawaii, or in Maine. Therefore, any federal program could be challenged on the ground that the national generalization supporting it was not applicable to the local market where the contract was awarded and that, consequently, the program was not "narrowly-tailored."

Finally there it the difficult issue of post-enactment evidence. While there has been some support in the Circuits for permitting post-enactment evidence to justify an MBE program, other courts have disagreed and the matter is not settled. In the Supreme Court decision Miller v. Johnson, decided June 29, 1995, the Court identified as one of the distinguishing characteristics of evidence used to meet the strict scrutiny test that "the state must have convincing evidence that remedial action is necessary before implementing affirmative action" 115 S. Ct. 2475, 2490. Certainly a government could not properly determine whether there was compelling reason to use the extreme measure of a race conscious remedy and then appropriately narrow- tailor that remedy, if the evidence to support its action had yet to be gathered and analyzed. If it turns out that the federal government cannot use post-enactment evidence, then it is unlikely that the melange of obsolete existing evidence, all created before the strict scrutiny test was applicable, will be sufficient to meet that test. If it is determined that post- enactment evidence is appropriate, then those new studies will need to come before Congress to determine if they support the existing programs in all their configurations.

 

Anecdotal material

 

Croson is not very clear about the role of anecdotal evidence in establishing the proof necessary before a jurisdiction can use racial classifications in public contracting as "an extreme measure." The Supreme Court clearly did consider the testimony before the Richmond City Council adequate. Some Circuits have considered some kinds of anecdotal evidence as useful supplements in understanding statistical data.

 

There are three forms of anecdotal evidence commonly used to justify MBE programs: surveys, interviews, and legislative hearings. There are several problems with the use of anecdotal evidence to establish the fact of discrimination where the result would be racial, ethnic, and gender preferences and the judicial test is strict scrutiny.

 

First, whether discrimination has in fact occurred is often complex and would require a knowledge of the perspectives of both parties involved in an incident as well as knowledge about how comparably placed persons of other races, ethnicities, and genders have been treated. Persons providing anecdotes rarely have such information. Attributing an incident to discrimination when the practice is just aggressive business behavior, barriers faced by all new or all small businesses, or bad communication is always a possibility.

 

Second, if a survey sample is not carefully constructed, the persons providing the anecdotes may reflect a "response bias." Social scientists are frequently concerned about the problem of "response bias" in any interviewing or survey situation. This bias occurs because the particular persons most likely to respond are those who feel the most strongly about a problem, even though they are not representative of the larger group.

 

Third, having a vested interest in preserving a benefit or entitlement is a frequent motivator in legislative testimony. When that occurs it is important to be certain both sides are heard and that there is some other measure of the accuracy of the claims, unless the purpose of the hearing is only to rally support for a measure which is often the case. Such efforts are not a proper basis on which to allocate constitutional rights, however.

 

Mitchell Rice, a professor of Political Science at Louisiana State University writing in the Public Administration Review about disparity studies, has pointed out:

 

Anecdotal evidence, interviews and affidavits must be from reliable and trustworthy sources and should include counter explanations and rebuttals from sources accused of bias. In other words, the gathering of evidence utilizing these approaches must be fair and deliberative. (September 1992, p. 485.)

 

For these reasons, assuming that anecdotal evidence has been carefully gathered and -subjected to some threshold test of verification, it is best used to establish hypotheses that could be more intensively investigated to see if the alleged source of discrimination actually exists and what the narrowly-tailored remedy should be. Without some special arrangements, neither disparity studies nor pre-legislation testimony will offer the occasion for an investigation of the kind of grapeshot allegations of discrimination which are often heard. Anonymous or unverified anecdotes should not be sufficient to establish the compelling interest necessary to sustain a racial or gender preference.

 

In conclusion, the federal courts are far from providing the last word on what kind of evidence will be necessary to meet the strict scrutiny test. No existing disparity study has met that test after being subjected to full discovery and trial. The strict scrutiny threshold, for the reasons discussed, may be an even more formidable test for a federal disparity study. In the meantime, litigation against federal MBE programs will force this issue in the courts. It will not go away. If-Congress is to set policy in this area, it will have to determine shortly whether, when, and where race-conscious programs are necessary and defensible and what kinds of evidence must exist to support those programs. Or, in the alternative, Congressional attention should be turned to creating race-neutral programs that will ensure access to firms owned by persons of any race, ethnicity or gender to federal contracting programs. Achieving justice in this complex area will be greatly assisted by a Congress that is informed and active.

(center>Appendix A Disparity Study Bibliography

 

Major disparity studies available to the public (September 1995)

 

Alabama

*Birmingham – Jefferson County Transit Authority – "Final Report of a Study to Support a Disadvantaged Business Enterprise Set-Aside Program," MGT, August 1992.

Arizona

Maricopa Co. – "The Maricopa County Minority and Women-Owned Business Enterprise Program Study," Mason Tillman Associates, August 1991.

**Phoenix – "City of Phoenix Disparity Study," BBC, July 1993.

*Pima Co. – "The City of Tucson Disparity Study," BBC, June 1994.

California

Alameda Co. – "The Utilization of Minority and Woman-Owned Business Enterprises by Alameda County," (NERA); May 1992.

Alameda County Transportation Authority – "Alameda County Transportation Authority Disparity Study Final Report," Mason Tillman Associates, June 1994.

Contra Costa Co. – "The Utilization of Minority and Woman- Owned Business Enterprises by Contra Costa County," NERA; May 1992.

Hayward – "The Utilization of Minority and Women-Owned Business Enterprises by the City of Hayward," NERA; Perkins Coie, March 1993.

Oakland – "Oakland Unified School District Disparity Study," Mason Tillman, July 1994.

*Sacramento – "Study of the Utilization of Minority/Women Business Enterprises (M/WBEs): Final Report," MGT, November 30, 1992.

San Francisco – "Statistical Support for San Francisco's MBE/WBE/LBE Ordinance," BPA Economics, May 1989.

San Francisco – "MBE/WBE Policy Study for San Francisco Unified School District," BPA, January 1991.

San Francisco Redevelopment Agency – "The Utilization of Minority and WomenOwned Business Enterprises by the San Francisco Redevelopment Agency," NERA, San Francisco Regional Transit Association – "The Utilization of Minority and Women-Owned Business Enterprises by Member Agencies of the Regional Transit Association," NERA; May 1993.

San Jose – "MBE/WBE Disparity Study for the City of San Jose," BPA; Mason Tillman, December 1990.

Los Angeles – "Los Angeles County Metropolitan Transportation Authority" DBE/MBE/WBE – Predicate Study, DEGA/TMS; May 1994 (Executive Summary only).

Colorado

Denver – "Denver Disparity Study Construction and Professional Design Services," Harding and Ogborn; Browne, Bortz & Coddington; Minority Business and Professional Director, June 1990.

Denver Regional Transportation District – "The Utilization of Minority and Woman Owned Business Enterprises by the Regional Transportation District," NERA, September 1992.

City and County of Denver Housing Authority – "Disparity Study: Denver Housing Authority City and County of Denver," BBC, August 1993.

Connecticut

"The New Connecticut: Toward Equal Opportunity in State Contracting," Henderson, Hyman & Howard, August 1992.

Florida

Broward County – "MBE/WBE Disparity Study for the Broward Interlocal Committee," BPA, July 1991.

Dade County I – "Racial Discrimination and Disparities in the Market Place Metropolitan Dade County, Florida," Brimmer & Company, Economic & Financial Consultants, June 1991.

Dade County II – "A Minority- and Women-Owned Business Discrimination Study," MRD Consulting, November 1993.

Dade County – "Dade County Public Schools Disparity Study," DJ. Miller, June 1990.

Jacksonville – "City of Jacksonville Disparity Study," DJ. Miller, November 1990.

Miami – "City of Miami Minority/Women Business Enterprise Utilization Study," Peat Marwick, October 1991.

Orange County – "Disparity Study for the Orange County Consortium," DJ. Miller, February 1993.

Palm Beach – "Palm Beach County Disparity Study," MGT, January 1991.

Palm Beach County School District – "Disparity Study of the Palm Beach County School District," MGT, February 1995.

St. Petersburg – "City of St. Petersburg Disparity Study," DJ. Miller, June 1990.

State of Florida – "State of Florida Minority/Women Study," TEM Associates, Inc. 1990.

Tampa – "City of Tampa Disparity Study," DJ. Miller, November 1990.

Tampa/St. Petersburg – "West Coast Regional Water Supply Authority Minority Business Enterprise Disparity Study," Peat Marwick, April 1992.

West Palm Beach – "City of West Palm Beach Disparity Study: Draft Final Report," MGT, May 1991.

Georgia

Atlanta – "Public Policy and Promotion of Minority Economic Development: City of Atlanta and Fulton County, Georgia," Brimmer and Marshall Economic Consultants, June 1990.

*MARTA – "Metropolitan Atlanta Regional Transit Authority," McMillen + Associates, June 1993.

Illinois

Chicago – "Metropolitan Water Reclamation District: Report on Availability and Utilization of Minority and Women Business Enterprises," James B. Murray, Metropolitan Water Reclamation, District of Greater Chicago, June 1991.

Chicago – "Metropolitan Water Reclamation District Report on Availability and Utilization of Minority and Women Business Enterprises,'@ Earl Neal and Associates; Vedder Price, 1990.

Chicago – "Report on Proposed Revision of Public Building Commission Minority and Women Owned Business Enterprise Program," Earl Neal and Associates, November 1991.

Cook County – "Predicate Study for the Cook County Minority – and Women-Owned Business Enterprise Program" Vedder, Price, Kaufman, and Kamholz, September 1993.

18

Louisiana

New Orleans Sewerage and Water Board – "Disparity in Contracting Opportunities," Dillard Consortium, New Orleans, LA., 1992.

New Orleans – "Disparity in the City of New Orleans, Louisiana," Metro Consulting, May 1992.

New Orleans – "Discrimination in New Orleans: An Analysis of the Effects of Discrimination on Minority and Female Employees and Business Owners," NERA, September 1994.

State of Louisiana – "An Analysis of Disparity and Possible Discriminating in the Louisiana Construction Industry and State Procurement System and Its Impact on Minorityand Women-Owned Firms Relation to the Public Works Arena," Dr. John Lunn, Louisiana State University and Dr. Huey Perry, Southern University, April 1990.

State of Louisiana – "An Analysis of Disparity and Possible Discriminating in the Louisiana Construction Industry and State Procurement System and Its Impact on Minorityand Women-Owned Firms Relation to the Public Works Arena," DJ. Miller; Minority Business Enterprise Legal Defense and Education Fund, Inc., June 1991.

Maryland

Baltimore – "An Assessment of Baltimore City's Minority and Women's Business Enterprise Program in Light of Croson: Draft Report," Michael A. Millemann et al.

Prince George's County – "An Examination of Prince George's County's Minority Business Program," MBELDEF, February 1991.

State of Maryland – "State of Maryland Minority Business Utilization Study," Volume I and 11, A.D. Jackson; March 1990.

State of Maryland – "The Utilization of Minority-Business Enterprises by the State of Maryland," NERA, December 1994.

Massachusetts

Boston – "The Utilization of Minority and Woman-Owned Business Enterprises in the Boston Metropolitan Area," NERA, June 1994.

State of Massachusetts Water Resources Authority – "Availability and Utilization of Minority and Women-Owned Business Enterprises at the Massachusetts Water Resources Authority," NERA, November 1990.

*Massachusetts Executive Office of Transportation and Construction – "The Commonwealth of Massachusetts Executive Office of Transportation and Construction: Disparity Study," DJ. Miller, March 1994.

Michigan

Grand Rapids – "Utilization Study of Minority and Women Business Enterprises in Kent and Ottawa Counties," City of Grand Rapids, reviewed by MBELDEF, Spring 1992.

Minnesota

State of Minnesota – "A Study of Discrimination Against Women- and MinorityOwned Businesses," Minnesota Department of Administration, Management Analysis Division, January 1990.

Missouri

St. Louis – "Discrimination and Disparities in the Marketplace: City of St. Louis, Missouri," Brimmer & Co., September 1991.

Nevada

Clark County (Las Vegas) – "Regional Economic Disparity Study: Clark County Department of General Services," BBC and MBELDEF, July 1994.

New Jersey

*State of New Jersey – "Final Report: State of New Jersey Governor's Study Commission on Discrimination in Public Works Procurement and Construction Contracts," February 1993.

City of Newark, Housing Authority, Board of Education – "Post-Croson Final Report," The Reed Brown Consulting Group.

New Mexico

New Mexico Highway and Transportation Departments – "New Mexico State Highway and Transportation Department Disparity Study," BBC January 1995.

New York

New York City – "The Utilization of Minority and Women-Owned Business Enterprises by the City of New York," NERA, January 1992.

*New York Metropolitan Transportation Authority – "Fact Finding Study," D.J. Miller, January 1990.

Port Authority of New York and New Jersey – "A Study of Disparity and Utilization of Minority and Women-Owned Businesses by the Port Authority of New York and New Jersey," the Office of Business and Job Opportunity and the Office of Economic and Policy Analysis, June 1993.

New York State – "Opportunity Denied!" Department of Economic Development, Spring 1992.

Rochester – "Ethnic and Gender Disparity and Discrimination in Procurement by the City of Rochester for Fiscal Years 1989 and 1990," Center for Governmental Research, July 1992.

Rochester School District – "Ethnic and Gender Disparity and Discrimination Related to Procurements by the Rochester City School District for Fiscal Years 1989 and 1990," Center for Governmental Research, October 1992.

North Carolina

Asheville – "Minority Business Disparity Study to Support city of Asheville Minority Business Plan," MGT and Research + Evaluation Associates of Chapel Hill, October, 1993.

Charlotte – "An MBE Disparity Study for the City of Charlotte," DJ. Miller, October 1993.

City of Durham and Durham County – "A Disparity Study of Disadvantaged Business Enterprise Programs," North Carolina Institute of Minority Economic Development, July 1993.

Guilford County – "Minority- and Women-Owned Business Enterprise Disparity Study for Guilford County," North Carolina Institute of Minority Economic Development, September 1994.

Greensboro – "City of Greensboro Minority- and Women-Owned Business Enterprise Program Disparity Study," North Carolina Institute of Minority Economic Development, July 1992.

North Carolina Department of Administration – "State-wide Disparity Study of Purchasing in State Agencies, Universities, and Community Colleges," January 1995.

North Carolina DOT – "Study of Minority and Women Business Participation in Highway Construction," MGT; Research and Evaluation of Chapel Hill, January 1992.

Raleigh – "Minority- and Women-Owned Business Enterprise Disparity Study for the City of Raleigh," North Carolina Institute of Minority Economic Development, June 1994.

Raleigh Durham Airport – "RDU Airport Authority Study of Minority-and WomenOwned Business Enterprise Disparities," January 1995.

Ohio

Cincinnati – "City of Cincinnati Croson' Study," Institute for Policy Research, University of Cincinnati, April 1992.

*Cleveland – "City of Cleveland Minority/Female Business Enterprise Utilization Study," A.D. Jackson, March 1992.

Columbus I – "Columbus, Ohio Disparity Study and Recommendations," Beatty & Roseboro, January 1991.

Columbus 11 – "Predicate Study, City of Columbus, Ohio," Minority Business Enterprise Legal Defense Education Fund and BBC, Inc., August 1992. Supplement, BBC, 'September 1993.

Dayton – "City of Dayton Disparity Study," DJ. Miller, March 1991.

Pennsylvania

Philadelphia – "Disparities and Discrimination in the Marketplace: Philadelphia, Pennsylvania," Brimmer & Company, May 1992.

*Southeastern Pennsylvania – "The Utilization of Minority and Woman-Owned Business Enterprises by the Southeastern Pennsylvania Transportation Authority," NERA, September 1993.

Tennessee

Memphis – "Disparity Study for Memphis/Shelby County Intergovernmental Consortium," DJ. Miller, October 1994.

Texas

Austin – "Minority Business Enterprise Utilization Report: A Disparity Study for the City of Austin and Capital Metro," DJ. Miller, September 1993.

*Dallas – "Dallas Area Rapid Transit Authority Availability Study of Disadvantaged Business Enterprises," Adrian Research Group; Perryman Consultants, Inc.; Dodd, Frazier, Jefferson and Talley, July 1991.

Dallas – "Minority and Women Owned Business Enterprises Availability and Disparity Study," City of Dallas, September 1992.

Dallas, "Availability and Disparity Study for the City of Dallas," DJ. Miller, February 1995.

Fort Worth – "Availability/Disparity Study," BBC, November 1993.

Houston – "Minority/Women Business Enterprise (M/WBE) Capacity Study for the City of Houston," Texas Southern University Center for Transportation Training and Research, June 1992.

Houston – "Disparity Study for Houston City Government," DJ. Miller, February 1995.

*San Antonio – "Utilization of Minority and Women-Owned Business Enterprises in Bexar County," NERA, April 1992.

State of Texas – "State of Texas Disparity Study: A Report to the Texas Legislature as Mandated by H.B. 2626, 73rd Legislature," NERA, December 1994.

Virginia

Richmond – "Availability and Utilization of Minority Business Enterprises at the City of Richmond, Virginia School Board and Richmond Redevelopment and Housing Authority," NERA, Perkins Coie, July 1991.

Washington State

Seattle – "Utilization of Minority and Women's Businesses in the Construction and Consulting Fields," Perkins Coie, November 1989.

Seattle – "Study of Minority/Women Business Participation in Purchasing and Concessions," Perkins Coie, Washington Consulting Group, July 1990.

Tacoma – "City of Tacoma: Study of Minority/Women Business Enterprise Participation in the Purchase of Goods and Services, Washington Consulting Group, July 1993.

Washington, D.C.

"Availability and Utilization of Minority and Women-Owned Business Enterprises at the Metropolitan Washington Airports Authority," NERA, Contract Compliance, Inc., February 1990.

"Discrimination Study on Minority Business Enterprises Final Report," A. L. Jackson, July 1994.

Wisconsin

Milwaukee – "A Study to Identify Discrimination Practices in the Milwaukee Construction Marketplace," Conta and Associates, Inc., February 1990.

Milwaukee – "M/WBE Disparity Study for the County of Milwaukee, City of Milwaukee, and Milwaukee Public Schools," Affirmative Action Consulting, Ltd. and Ralph G. Moore and Associates, April 1992.

Study funded in part by Federal Transit Authority

Study funded in part by Housing and Urban Development

 

Appendix B

 

Publications List

 

"Race Neutral Programs in Public Contracting," with John Sullivan, Public Administration Review,, Vol. 55, No. 4, July/August 1995.

 

This article examines how state and local jurisdictions have responded to race neutral alternatives in public contracting. Several dozen disparity studies were surveyed.

 

"Selective Perception: The Role of History in the Disparity Study Industry," The Public Historian, Vol. 17, No. 2, Spring 1995.

This piece looks at the misuse of history in disparity studies. Dr. LaNoue argues that the historical sections appearing in these studies cannot support preference programs.

 

"Standards for the Second Generation of Croson-Inspired Disparity Studies," The Urban Lawyer,, Vol. 26, No. 3. Summer 1994.

Based on a sample of 59 disparity studies, this article represents the most thorough analysis of these studies. Dr. LaNoue focuses on the many technical aspects of producing persuasive disparity studies.

 

"Presumptions for Preferences: The Small Business Administration's Decisions on Groups Entitled to Affirmative Action," with John Sullivan, Journal of Policy Histgu, Vol. 6, No. 4,, Fall 1994.

 

Working from materials gained through a Freedom of Information Act request, the authors documented the rationales used by the Small Business Administration in deciding the eligibility of 8 groups applying for admission into the agency's 8(a) program- "Minority Business Programs and Disparity Studies: Responding to the Supreme Court's Mandate in City of Richmond v. Croson'," monograph for the National League of Cities, 1994.

 

This is the updated version of a monograph Dr. LaNoue completed for the National League of Cities in 1991. The report serves as a primer for local government officials seeking to understand disparity studies. This is the best seller in the National League of Cities' Local Officials Guide series.

 

"The Disparity Study Shield," in Racial Preferences in Public Contracting, edited by Roger Clegg, National legal Center for the Public Interest, 1993.

 

In this article, Dr. LaNoue looked at the experiences of Baltimore and San Francisco in commissioning disparity studies intended to shield the cities' minority business programs.

 

"The Demographic Assumptions of Affirmative Action," Population and Environment, May 1993.

 

The growth of non-black affirmative action groups, as well as the increasing prosperity of these groups, raises uncertainty about the future of race and ethnic preferences.

 

Using Census data, Dr. LaNoue shows the effects of changes in American demography on blacks, the principle intended beneficiary of affirmative action.

 

"Social Science and Minority Set-Asides," The Public Interest, Winter 1993.

 

This article looks at the role of the social sciences in disparity studies. Various study methodologies and studies are critiqued.

"But for Discrimination How Many Minority Businesses Would There Be?" with John Sullivan, Columbia Human Rights Law Review, Winter 1992.

 

Minority business programs are frequently justified on the assumption that discrimination has reduced the number of minority owned businesses. The authors show why this hypothesis is unpersuasive by looking at disparity studies in Milwaukee, Denver, and Dade County, Florida.

 

George R. LaNoue

Project on Civil Rights and Public Contracting

UMBC

5401 Wilkens Ave.

Baltimore, MD 21228

(410) 455-2180

 

Appendix C

 

Qualifications

 

In determining whether a disparity is caused by discrimination or some other factor, measuring the effect of qualifications required by a jurisdiction is a legal necessity. A number of courts have repeated this requirement over and over again in different settings (employment, contracting, university admissions).

 

Justice O'Connor used the term "qualified" firms three times in Croson. She drew the analogy between employment law and public contracts by citing Hazlewood for the proposition that, "where special qualifications are necessary, the relevant statistical pool for purposes of demonstrating discriminatory exclusion must be the number of minorities qualified to undertake the particular task." Croson, at 501-502. Justice O'Connor repeated this point when she quoted from Hazlewood again that gross statistical qualifications can show a prima facie case of discrimination but "[w1hen special qualifications are necessary to fill particular jobs, comparisons to the general population [rather than to a smaller group of individuals who possess the necessary qualifications] may have little probative value." Croson, at 501. In the end, she concluded that Richmond ultimately did not have information on "how many MBE's in the relevant marketplace are qualified to undertake prime or subcontracting work in public construction projects . . ." (Croson at 502.)

 

In Coral Construction v. Mng County, before remanding consideration of a disparity study back to the district court, the Ninth Circuit quoted the Supreme Court's opinion in International Brotherhood and reminded the parties that,

 

Statistics are not irrefutable; they come in infinite variety and, like any other kind of evidence, they may be rebutted. In short, their usefulness depends on all of the surrounding facts and circumstances. (941 F.2d 910, 919 [19911)

 

In Coral, the Ninth Circuit provided a useful summary of the Supreme Court's instructions for the use of statistical data in analyzing disparities: the Supreme Court has focused its attention on delineating the proper methods for interpreting statistical data. See e.g., Bazemore v. Friday, 478 U.S. 385, 400 (1986) (holding that, as a general rule, the failure to include variables in a regression analysis affects only the probativeness of the analysis, not its admissibility); Johnson v. Transportation Agency, 480 U.S. 616, 632, (1987) (holding that where a job requires special training, appropriate statistical comparison should be with those in the labor force who possess the necessary qualifications); Wards Cove Packing Co. v. Antonio, 490 U.S. 642, 650-51, (1989) (holding that the proper statistical analysis is between the racial composition of qualified persons in the labor market and the persons holding the jobs at issue). (Coral Construction at 919.) An application of these concepts can be seen in Hammon v. Bany, where the D.C. Circuit Court of Appeals said:

 

Under the case law, the critical comparative group is that of the qualfted applicant pool which may or may not be the entire workforce in the area. Thus, when the job qualifications involved are ones that relatively few possess, statistical presentations that fail to focus on those qualifications do not have significant statistical probative value. (813 F.2d 412, 427, n. 31. [1987])

In post-Croson cases the emphasis on considering the actual qualifications needed has continued. In Long v. Saginaw, the Sixth Circuit asserted the need to address the question of qualifications because the City's proposed statistical pool drawn from the census failed to disclose the constant age, educational background, general physical fitness, and capabilities of its members and other material factors which would have afforded a basis from which meaningful statistical comparisons could have been fixed, thus disregarding the principles voiced by the Supreme Court in Hazlewood." 911 F.2d 1192,1199 [1990].

 

In another case, United Black Firefighters Assn. v. City of Akron, 976 F.2d 999 [19921 the Sixth Circuit said, citing Croson that:

But where special qualifications are necessary, the relevant statistical pool for demonstrating discriminatory exclusion must be the number of minorities qualified to undertake the task. (At 1010.)

 

Therefore:

 

To evaluate adequately any statistical data, there must be [1] evidence of the basic qualifications of a fire lieutenant and [21 a , determination, based on these qualifications, of the relevant statistical pool with which to make the appropriate comparisons. (At 1011.)

 

See also, Peightal v. Metropolitan Dade County, 940 F.2d 1394 [1991], where the Eleventh Circuit in discussing Croson in the employment context said:

 

But where special qualifications are necessary, the relevant statistical pool for purposes of demonstrating discriminatory exclusion must be the number of minorities qualified to undertake the particular task." (At 1402)

 

Other Circuit courts are also following this rule. The Third Circuit in an earlier ruling in Contractors Association of Pennsylvania v. Philadelphia rejected the City's pre-enactment evidence because, although based on the roster of city licensed contractors, that list did not reflect those firms "available and qualified" for city contracts.

 

On September 23, 1994 in Concrete Works v. Denver, the Tenth Circuit reversed and remanded a district court ruling upholding a disparity study on summary judgement. The Circuit Court repeated the CrosonlHazlewood language and even chose to underline the last part: where special qualifications are necessary, the relevant statistical pool for purposes of demonstrating discriminatory exclusion must be the number of minoritiesqualified to undertake the particular task. (emphasis in original) (At 1528)

 

Similarly, the Sixth Circuit on October 6,1994 in an 11-4 en banc decision overturned a district court affirmation of a consent decree requiring race conscious measures of police and fire officer promotions. The Circuit said about qualifications:

 

'Special qualifications,' then, winnow out a large enough portion of the general workforce to create a real possibility that the qualified labor pool for the position will have a materially different racial composition than that of the general workforce. Aiken v. Memphis, 37 F3d 1155, 1165 (6th Cir. 1994)

 

Finally, on October 27, 1994, the Fourth Circuit overturned a district court affirmation of race-based scholarships at the University of Maryland-College Park in Podberesky v. lGrwan, 38 F3d 147 (4th Cir. 1994). The Circuit Court did not credit the University's argument that it underenrolled black students because the University's statistics were based on a head count of black high school graduates and did not take into account the qualifications of those graduates for university admission. The Circuit said:

The method of determining the relevant pool by looking at the qualifications needed to take advantage of the opportunity from which minorities have historically been excluded and the prevalence of those qualifications in the population is not limited to the employment context. See City of Richmond v. J. A. Croson, 488 U.S. 469,501502 (1989) . . . The pool must be determined on the qualifications, not by determining which numbers exist in the record and then adopting the corresponding qualifications, which is one way of characterizing what occurred in the district court. (at 156-57)

 

On December 30, 1994 the Fourth Circuit in an en banc 8-3 decision refused to grant a new hearing on the panel's Podberesky ruling. The University then appealed to the Supreme Court, but the Court decided not to hear the case.

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