The State of Minority- and Women- Owned ... - Cleveland.com

Legal Standards for Government Affirmative Action Contracting Programs
In Adarand v. Peña, 12 the Court extended the analysis of strict scrutiny to race-based federal
enactments such as the DBE program. Just as in the local government context, the national
government must have a compelling interest for the use of race and the remedies adopted must
be narrowly tailored to the evidence relied upon.
In general, courts have subjected preferences for Women-Owned Business Enterprises
(“WBEs”) to “intermediate scrutiny:” gender-based classifications must be supported by an
“exceedingly persuasive justification” and “substantially related” to the objective. 13 However,
the Sixth Circuit has applied strict scrutiny to female contracting preferences, 14 and appellate
courts reviewing the constitutionality of the Disadvantaged Business Enterprise program for
federally-assisted transportation contracts have applied strict scrutiny to the gender-based
presumption of social disadvantage. 15
Below is a detailed discussion of the parameters for establishing Cleveland’s compelling interest
in remedying discrimination in its contracting and geographic market areas and the legal and
program development issues the City should consider in evaluating any race- and genderconscious
initiatives for locally-funded contracts..
2. City of Richmond v. J.A. Croson
City of Richmond v. J.A. Croson Co. 16 established the constitutional contours of permissible
race-based public contracting programs. Reversing long established law, the Supreme Court for
the first time extended the highest level of judicial examination from measures designed to limit
the rights and opportunities of minorities to legislation that benefits these historic victims of
discrimination. Strict scrutiny requires that a government entity prove both its “compelling
interest” in remedying identified discrimination based upon “strong evidence,” and that the
measures adopted to remedy that discrimination are “narrowly tailored” to that evidence.
However benign the government’s motive, race is always so suspect a classification that its use
must pass the highest constitutional test of “strict scrutiny.”
The Court struck down the City of Richmond’s Minority Business Enterprise Plan that required
prime contractors awarded City construction contracts to subcontract at least 30 percent of the
project to MBEs. A business located anywhere in the country which was at least 51 percent
owned and controlled by “Black, Spanish-speaking, Oriental, Indian, Eskimo, or Aleut” citizens
was eligible to participate. The Plan was adopted after a public hearing at which no direct
evidence was presented that the City had discriminated on the basis of race in awarding contracts
or that its prime contractors had discriminated against minority subcontractors. The only
11 United States v. Paradise, 480 U.S. 149, 171 (1987); see Scott, 199 F.3d at 219 (the City should have adopted
“particularized findings” of discrimination and set goals accordingly).
12 515 U.S. 200 (1995) (Adarand III).
13 Cf. United States v. Virginia, 518 U.S. 515 (1996).
14 Brunet City of Columbus, 1 F.3d 390, 404 (6th Cir. 1993).
15 Northern Contracting, Inc. v. Illinois Department of Transportation, 473 F.3d 715, 720 (7 th Cir. 2007).
16 488 U.S. 469 (1989).
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