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Legal Standards for Government Affirmative Action Contracting Programs
II. Legal Standards for Government Affirmative Action Contracting
Programs
A. General Overview of Strict Scrutiny
1. Summary of Constitutional Standards
To be effective, enforceable, and legally defensible, a race-based program must meet the judicial
test of constitutional “strict scrutiny.” Strict scrutiny is the highest level of judicial review and
consists of two elements:
• The government must establish its “compelling interest” in remedying race
discrimination by current “strong evidence” of the persistence of discrimination. Such
evidence may consist of the entity’s “passive participation” in a system of racial
exclusion.
• Any remedies adopted must be “narrowly tailored” to that discrimination, that is the
program must be directed at the types and depth of discrimination identified. 9
The compelling interest prong has been met through two types of proof:
• Statistical evidence of the underutilization of minority firms compared to their
availability in the jurisdiction’s market area, known as disparity indices, comparable to
the type of “disparate impact” analysis used in employment discrimination cases.
• Anecdotal evidence of race-based barriers to the full and fair participation of minority
firms in the market area and in seeking contracts with the agency, comparable to the
“disparate treatment” analysis used in employment discrimination cases. 10
The narrow tailoring prong has been met through the satisfaction of five factors to ensure that the
remedy “fits” the evidence:
• The efficacy of race-neutral remedies at overcoming identified discrimination.
• The relationship of numerical benchmarks for government spending to the availability of
minority- and women-owned firms and to subcontracting goal setting procedures.
• The congruence between the remedies adopted and the beneficiaries of those remedies.
• Any adverse impact of the relief on third parties.
• The duration of the program. 11
9 City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989).
10 Croson, 488 U.S at 509; Scott, 199 F.3d at 218).
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