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

Legal Standards for Government Affirmative Action Contracting Programs
4. Program Over-inclusiveness and Under-inclusiveness
The over- or under-inclusiveness of those persons to be included in a program is an additional
consideration, and goes to whether the remedies truly target the evil identified. 171 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.
The groups to include must be based upon the evidence. 172 One deficiency noted by the court in
its determination that Cuyahoga Community College’s program was too broad was the lack of
findings of discrimination against all the included racial and ethnic groups and any economic
disadvantage eligibility requirement. 173 The “random inclusion” of ethnic or racial groups that
may never have experienced discrimination in the entity’s market area may indicate
impermissible “racial politics.” 174 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.” 175 However, some quantum of evidence of discrimination for each group is sufficient;
Croson does not require that each group included in the ordinance suffer equally from
discrimination. 176
Therefore, remedies should be limited to those firms that have suffered actual harm. Goals
should be set only for those groups shown to have suffered discrimination in the market area; a
program that limits relief to the racial or ethnic groups that have suffered discrimination in the
agency’s market area and have been adversely affected in their ability to obtain agency contracts
will meet this element of narrow tailoring. 177 Similarly, the DBE Program’s rebuttable
presumptions of social and economic disadvantage have been central to the courts’ holdings that
it is narrowly tailored, 178 and anyone can challenge the disadvantaged status of any firm. 179
The level of specificity at which to define beneficiaries is a policy question. Approaches range
from a single M/WBE or DBE goal that includes all racial and ethnic minorities and nonminority
171 See Association for Fairness in Business, Inc. v. New Jersey, 82 F.Supp.2d 353, 360 (D.N.J. 2000).
172 Philadelphia II, 6 F.3d at 1007-1008 (strict scrutiny requires data for each minority group; data was insufficient
to include Hispanics, Asians or Pacific Islanders or Native Americans).
173 F.Buddie, 31 F.Supp.2d at 583.
174 Webster, 51 F.Supp.2d at 1380–1381.
175 BAGC v. Cook, 256 F.3d at 646.
176 Concrete Work IV, 321 F.3d at 971.
177 Rowe, 615 F.3d at 254 (“[T]he statute contemplates participation goals only for those groups shown to have
suffered discrimination. As such, North Carolina’s statute differs from measures that have failed narrow tailoring
for overinclusiveness.”).
178 Sherbrooke, 345 F.3d at 973; see also Grutter, 539 U.S. at 341; Adarand VII, 228 F.3d at 1183-1184 (personal
net worth limit is element of narrow tailoring); cf. Associated General Contractors v. City of New Haven, 791
F.Supp. 941, 948 (D. Conn. 1992), vacated on other grounds, 41 F.3d 62 (2nd Cir. 1992) (definition of
“disadvantage” was vague and unrelated to goal).
179 49 C.F.R. §26.87.
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