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

Legal Standards for Government Affirmative Action Contracting Programs
provision. 150 In contrast, the USDOT DBE Program’s periodic review by Congress has been
repeatedly held to provide adequate durational limits. 151
This means that affirmative action programs must be regularly reviewed to ensure that a strong
basis in evidence remains to use the highly suspect tool of race in government decision making.
Very old studies will not suffice to support current programs. 152 The City of Augusta, Georgia’s
program failed to meet strict scrutiny, because “the [M/WBE] Program is still in place 13 years
after the [Disparity] Study was compiled without any further investigation into the underlying
reasons for creating a program, and without any sunset or expiration provision.” 153 Likewise,
Chicago’s program was based on 14-year-old information, which while it supported the program
adopted in 1990, no longer was sufficient standing alone to justify the City’s efforts in 1994. 154
How old is too old is not definitively answered, 155 but governments would be wise to analyze
data at least once every five or six years. 156
1. Race- and Gender-Neutral Remedies
Race- and gender-neutral approaches are a necessary component of a defensible and effective
M/W/DBE program. 157 The failure to seriously consider race- and gender-neutral remedies has
been fatal to M/WBE programs. 158 Such measures include unbundling of contracts into smaller
units, providing technical support, and addressing issues of financing, bonding, and insurance
150 BAGC v. Chicago, 298 F.Supp.2d at 739; see also O’Donnell, 963 F.2d at 428 (the District “reenacted the law in
1980 and deleted the sunset provision. Fifteen years have now passed since the District put its minority
contracting program into effect. The District has not suggested that an end is in sight.”). Webster, 51 F. Supp. 2d
at 1382 (telling disqualifier was that the County had been implementing a “quota” program since 1979 with no
contemplation of program expiration).
151 See Western States, 407 F.3d at 995.
152 See, e.g., Baltimore I, 83 F.Supp.2d at 620 (10-year-old evidence to justify 1999 goals is equivalent to no
evidence).
153 Thompson. v. Augusta, at *9.
154 BAGC v. Chicago, 298 F.Supp.2d at 739.
155 This question has been presented more than once in Sixth Circuit cases. See, e.g., Drabik I, 50 F.Supp.2d at 745,
750 (“A program of race-based benefits cannot be supported by evidence of discrimination which is now over
twenty years old.… The state conceded that it had no additional evidence of discrimination against minority
contractors, and admitted that during the nearly two decades the Act has been in effect, it has made no effort to
determine whether there is a continuing need for a race-based remedy.”); Brunet, 1 F.3d at 409 (fourteen-yearold
evidence of discrimination “too remote to support a compelling governmental interest.”).
156 Cf. F.Buddie v. Cuyahoga Community College, 31 F.Supp.2d 571, 584 (among other deficiencies, 15 year old
data could not support a program).
157 Id. (no consideration of race-neutral remedies); Croson, 488 U.S. at 507 (Richmond considered no alternatives to
race-based quota); Drabik II, 214 F.3d at 738; Philadelphia III, 91 F.3d at 609 (City’s failure to consider raceneutral
alternatives was particularly telling); Webster, 51 F.Supp.2d at 1380 (for over 20 years County never
seriously considered race-neutral remedies); cf. Aiken, 37 F.3d at 1164 (failure to consider race-neutral method
of promotions suggested a political rather than a remedial purpose).
158 See, e.g., Florida A.G.C. Council, Inc. v. State of Florida, Case No.: 4:03-CV-59-SPM at 10 (N. Dist. Fla. 2004)
(“There is absolutely no evidence in the record to suggest that the Defendants contemplated race-neutral means
to accomplish the objectives” of the statute.); Engineering Contractors II, 122 F.3d at 928.
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