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

Legal Standards for Government Affirmative Action Contracting Programs
some of the studied industries in some of the jurisdictions. And we recognize that a
minority owned firm’s capacity and qualifications may themselves be affected by
discrimination. But we hold that the defects we have noted detract dramatically from the
probative value of these six studies, and, in conjunction with their limited geographic
coverage, render the studies insufficient to form the statistical core of the “strong basis in
evidence” required to uphold the statute. 59
The Federal Circuit concluded its analysis of compelling interest by “stress[ing] that [its] holding
is grounded in the particular terms of evidence offered by DOD and relied on by the district court
in this case, and should not be construed as stating blanket rules, for example, about the
reliability of disparity studies.” 60
Given the holding that Congress lacked a strong basis in evidence for the DOD program, the
court did not rule on whether its provisions were narrowly tailored. The court did note, however,
in its prior rulings that the program is flexible, limited in duration, and not unduly burdensome to
third parties, and that the program has tended to narrow the reach of its remedies over time. 61
C. Gender-Conscious Programs
Whether affirmative action procurement programs that benefit women are subject to the lesser
constitutional standard of “intermediate scrutiny” has yet to be settled by the Supreme Court. 62
Most courts have applied intermediate scrutiny to preferences for women and then upheld or
struck down the female preference under that standard. 63 However, the Sixth Circuit, which
governs Ohio, has applied strict scrutiny to gender preferences. 64
D. Burdens of Production and Proof
Unlike most legal challenges, the defendant has the initial burden of producing “strong evidence”
in support of the program. 65 The plaintiff must then proffer evidence to rebut the government’s
case, and bears the ultimate burden of production and persuasion that the affirmative action
program is unconstitutional. 66 “[W]hen the proponent of an affirmative action plan produces
sufficient evidence to support an inference of discrimination, the plaintiff must rebut that
59 Rothe, 545 F.3d at 1045.
60 Id. at 1049.
61 Id. at 1049.
62 Cf. United States v. Virginia, 518 U.S. 515 (1996) (applying standard of “exceedingly persuasive justification” in
striking down Virginia Military Institute’s males only admissions policy).
63 See, e.g., Northern Contracting I, at *44 (women’s status as presumptively socially disadvantaged passes
intermediate scrutiny); Scott, 199 F.3d at 215 n.9; Engineering Contractors II, 122 F.3d at 907-910; Concrete
Works II, 36 F.3d at 1519; Philadelphia II, 6 F.3d at 1009; Coral Construction Co. v. King County, 941 F.2d
910, 930-931 (9 th Cir. 1991); Baltimore I, 83 F.Supp 2d at 613.
64 Brunet City of Columbus, 1 F.3d 390, 404 (6th Cir. 1993).
65 Aiken v. City of Memphis, 37 F.3d 1155, 1162 (6 th Cir. 1994).
66 Adarand VII, 228 F.3d at 1166.
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