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

Legal Standards for Government Affirmative Action Contracting Programs
It is imperative that remedies not operate as fixed quotas. 132 Firms that fail to meet the
subcontracting goals but make good faith efforts to do so must be eligible for contract awards. 133
Further, firms that meet the goals cannot be favored over those who made good faith efforts. In
Croson, the Court refers approvingly to the contract-by-contract waivers used in the USDOT’s
DBE program. 134 This feature has been central to the holding that the DBE program meets the
narrow tailoring requirement, and is necessary for a local program. 135
The over- or under-inclusiveness of those persons to be included in the program is an additional
consideration, and goes to whether the remedies truly target the evil identified. 136 The “fit”
between the problem and the remedy manifests in three ways: which groups to include, how to
define those groups, and which persons will be eligible to be included within those groups.
First, the determination of presumptive social disadvantage of each racial and ethnic group must
be based upon the evidence. 137 In striking down the District of Columbia’s MBE program, the
court noted that there were no “findings with respect to discrimination in the construction
industry against Hispanic Americans, Asian Americans, Pacific Islander Americans, or Native
Americans, all of whom are included in the Act’s definition of ‘minority.’” 138 The “random
inclusion” of groups that may never have experienced discrimination in the entity’s marketplace
may indicate impermissible “racial politics.” 139 Similarly, the Seventh Circuit, in striking down
Cook County’s program, remarked that a “state or local government that has discriminated just
against blacks may not by way of remedy discriminate in favor of blacks and Asian-Americans
and women.” 140
However, at least one court has held that some quantum of evidence of discrimination for each
group is sufficient. The Tenth Circuit held that Croson does not require that each group included
in the ordinance suffer equally from discrimination. 141
132 See 49 C.F.R 26.43 (quotas are not permitted and set-aside contracts may be used only in limited and extreme
circumstances “when no other method could be reasonably expected to redress egregious instances of
discrimination”).
133 See, e.g., BAGC v. Chicago, 298 F. Supp.2d at 740 (“Waivers are rarely or never granted…The City program is a
rigid numerical quota…formulistic percentages cannot survive strict scrutiny.”).
134 488 U.S. at 508; see also Adarand Constructors, Inc. v. Slater, 228 F.3d 1147, 1181 (10 th Cir. 2000), cert.
granted then dismissed as improvidently granted, 532 U.S. 941, 534 U.S. 103 (2001) (“Adarand VII”).
135 See, e.g., Sherbrooke Turf, Inc. v. Minnesota Department of Transportation, 345 F.3d. 964, 972 (8 th Cir. 2003),
cert. denied, 541 U.S. 1041 (2004).
136 Association for Fairness in Business, Inc. v. New Jersey, 82 F.Supp.2d 353, 360 (D.N.J. 2000).
137 Contractors Association of Eastern Pennsylvania v. City of Philadelphia, 6 F.3d 990, 1007 (3rd Cir. 1993)
(“Philadelphia II”) (strict scrutiny requires data for each minority group; data was insufficient to include
Hispanics, Asians or Pacific Islanders or Native Americans); cf. Northeastern Florida Chapter of the AGC v.
Jacksonville, 508 U.S. 656, 660-661 (1993) (new ordinance narrowed to Blacks and women).
138 O’Donnell, v. District of Columbia, 963 F.2d at 427.
139 Webster, 51 F.Supp.2d at 1380–1381.
140 BAGC v. Cook County, 256 F.3d at 646 (no evidence of discrimination against any group other than Blacks).
141 Concrete Work IV, 321 F.3d at 9761.
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