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

Legal Standards for Government Affirmative Action Contracting Programs
inference in order to prevail.” 67 A plaintiff “cannot meet its burden of proof through conjecture
and unsupported criticism of [the government’s] evidence.” 68 For example, in the challenge to
the Minnesota and Nebraska DBE programs, plaintiffs 69 “presented evidence that the data was
susceptible to multiple interpretations, but they failed to present affirmative evidence that no
remedial action was necessary because minority-owned small businesses enjoy nondiscriminatory
access to and participation in highway contracts. Thus, they failed to meet their
ultimate burden to prove that the DBE program is unconstitutional on this ground.” 70
There is no requirement of formal legislative findings, 71 nor “an ultimate judicial finding of
discrimination before [a local government] can take affirmative steps to eradicate
discrimination.” 72 When the statistical information is sufficient to support the inference of
discrimination, the plaintiff must prove that the statistics are flawed. 73 A plaintiff cannot rest
upon general criticisms of studies or other evidence; it must carry the case that the government’s
proof is inadequate to meet strict scrutiny, rendering the legislation or governmental program
illegal. 74
E. Establishing a “Strong Basis in Evidence” for a Race-Conscious
Contracting Program for Locally-Funded Contracts
The Denver and Chicago decisions provide the most detailed analysis of the evidence necessary
to establish that Cleveland would be a passive participant in a discriminatory marketplace in the
absence of race-based remedies for its locally-funded contracts. These cases upheld programs
based upon the types and quality of evidence, and the methodologies, applied in this Report.
1. Concrete Works, Inc. v. City and County of Denver
In 2003, the City and County of Denver’s M/WBE Program was upheld using the “law and
economics approach” to disparity studies (in addition to trial testimony of discrimination), the
approach applied in this Report. 75 The defense relied primarily on expert reports and testimony
derived from an economic model of business discrimination. The court of appeals recognized
67 Engineering Contractors II, 122 F3d at 916; see also West Tennessee Chapter of Associated Builders and
Contractors, Inc. v. City of Memphis, 302 F.Supp.2d 860, 864 (W.D. Tenn. 2004).
68 Concrete Works IV, 321 F.3d at 989; see also H.B. Rowe, 2008 U.S. Dist. Lexis at *27.
69 The plaintiffs in both cases were represented by the same counsel and attempted to rely upon the same
consultant.
70 Sherbrooke, 345 F.3d at 970.
71 Webster, 51 F.Supp.2d at 1364.
72 Concrete Works II, 36 F.3d at 1522.
73 Engineering Contractors II, 122 F.3d at 916; Coral Construction, 941 F.2d at 921.
74 Adarand VII, 228 F.3d at 1166; Engineering Contractors II, 122 F.3d at 916; Philadelphia III, 91 F.3d at 597;
Concrete Works II, 36 F.3d at 1522-1523; Webster, 51 F. Supp. 2d at 1364; see also Wygant, 476 U.S. at 277-
278.
75 Concrete Works of Colorado, Inc. v. City and County of Denver, 321 F.3d 950 (10 th Cir. 2003), cert. denied, 540
U.S. 1027 (2003) (“Concrete Works IV”).
NERA Economic Consulting 32