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25 parity study. As we have already noted in Chapter One, anec- sures. Some consultants further advise the client on what DBE dotal evidence of experiences with discrimination in con- goals to adopt; other researchers, including ourselves, do not tracting opportunities is highly relevant since it addresses because it usurps the agency's role as policy maker. Translat- whether observed statistical disparities are due to discrimi- ing availability measures into DBE goals is the responsibility nation and not to some other nondiscriminatory cause or of agency policy makers, not the consultant, because it reflects causes. As stated in Croson, ". . . [e]vidence of a pattern of the application of judgment to the findings of the study in individual discriminatory acts can, if supported by appropri- relationship to overall agency objectives. ate statistical proof, lend support to a local government's determination that broader remedial relief is justified."92 Tes- Current State DOT timony about personal experiences can bring "cold numbers Goal-Setting Methods convincingly to life." As the Supreme Court has put it, in the context of an employment discrimination case: Of the 51 state DOTs examined, only 10 set DBE goals dur- ing any portion of FFYs 20062008 using disparity or avail- The company's principal response to this evidence is that statis- ability studies. Table 4 and the accompanying Figures 24 tics can never in and of themselves prove the existence of a pat- show the goal-setting method used by each DOT in each of tern or practice of discrimination, or even establish a prima facie the three fiscal years studied. case shifting to the employer the burden of rebutting the infer- Clearly, the most commonly employed method for establish- ence raised by the figures. But, as even our brief summary of the evidence shows, this was not a case in which the Government ing annual DBE goals is the use of a bidders list.94 Just over half relied on "statistics alone." The individuals who testified about the state DOTs opted for this approach. For FFY 2006, 27 state their personal experiences with the company brought the cold DOTs used bidders lists, and two employed a combination of numbers convincingly to life. . . . In any event, our cases make it a bidders list approach and a disparity study. For FFY 2007, unmistakably clear that "[s]tatistical analyses have served and 27 state DOTs employed the bidders list approach, one will continue to serve an important role" in cases in which the employed a combination of a bidders list approach and a dis- existence of discrimination is a disputed issue. We have repeat- edly approved the use of statistical proof, where it reached pro- parity study, and one used a combination of a bidders list portions comparable to those in this case, to establish a prima approach and two other approaches.95 For FFY 2008, 25 state facie case of racial discrimination in jury selection case. Statistics DOTs employed a bidders list approach, one used a combina- are equally competent in proving employment discrimination. tion of a bidders list approach and a disparity study, and one We caution only that statistics are not irrefutable; they come in used a combination of a bidders list approach and two other infinite variety and, like any other kind of evidence, they may be approaches. rebutted. In short, their usefulness depends on all of the sur- rounding facts and circumstances.93 After the bidders list approach, the next most frequently used is an "alternate method."96 In all cases, the alternate Anecdotal evidence is not often included in availability stud- method has been essentially the bidders list approach--but ies, since they are addressed primarily toward narrow tailoring, with a different list. In the vast majority of these cases, the with the understanding that the existence of discrimination has alternate list chosen for use was a list of prequalified contrac- tors. State DOTs using prequalified contractor lists to set DBE already been established. The Ninth Circuit's Western States goals were Indiana, Kentucky, Michigan, Ohio, Pennsylvania, decision, as previously noted, has confused and conflated the Tennessee, Virginia, and West Virginia.97 distinction between the two prongs of strict scrutiny. Reflect- By comparison to the use of bidders lists and alternates ing this, WSDOT (2006) supplemented its availability study such as prequalified contractor lists, the two remaining goal- with anecdotal evidence to support resuming the use of DBE setting options were employed with much less frequency. subcontracting goals to meet its annual goal. Other than Maine DOT in FFYs 2007 and 2008, no state DOT Findings and Recommendations. All availability studies has used the goals of other DOT recipients to set its own and disparity studies included a final chapter containing find- goals, and only five states have employed the DBE directory ings and recommendations. and Census Bureau data approach. Recommendations allow the consultant to opine whether the evidence developed in its study could or could not sup- port the adoption or continuation of race-conscious mea- 9449 C.F.R. 26.45(c)(2). 95Maine DOT combined of a bidders list approach and two other approaches. For 2007 and 2008, Maine calculated Step 1 availability using three different approaches: bidders list; DBE directory and Census Bureau data; and the goals of other DOT 92 Croson, at 509. recipients. It then used the average of all three to arrive at the Step 1 figure. 93 9649 C.F.R. 26.45(c)(5). International Brotherhood of Teamsters v. United States, et al., 431 U.S. 324 (1977), at 339; see also Concrete Works II, 36 F.3d at 1521 ("Croson impliedly 97Other types of lists employed included lists of licensed contractors (Nevada), endorsed the inclusion of personal accounts of discrimination"). plan holders (Iowa), and contractors with approved EEO policies (Kansas).

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26 Table 4. Goal-setting methods employed by state DOTs, FFYs 20062008. FHWA DBE Overall FHWA DBE Overall FHWA DBE Overall State Goal 2006 Method Goal 2007 Method Goal 2008 Method California 1 1 3 Colorado 2&3 3 3 Georgia 3 3 3 Illinois 3 3 3 Maryland 1&3 3 1&3 Minnesota 3 2 3 Missouri 3 3 3 Nevada 5 5 3 North Carolina 2&3 2&3 2&3 Washington 3 3 3 Hawaii 1 1 1 New Jersey 1 1 1 New York 1 1 1 Alabama 2 2 98 Alaska 2 99 100 Arizona 2 2 2 Arkansas 2 2 2 Connecticut 2 2 2 D. C. 2 2 2 Delaware 2 2 2 Florida 2 2 2 Idaho 2 2 2 Louisiana 2 2 2 Massachusetts 2 2 2 Mississippi 2 2 2 Montana 101 2 2 98Alabama DOT (ALDOT) was awaiting approval of its 2008 goal documents by FHWA. 99Alaska DOT&PF indicated that data problems prevented it from setting a DBE 100 See fn 99. 101 goal in FFY 2007 or FFY 2008 using any of the methods available in 26.45(c). According to our correspondence with Montana DOT (MDT), it did not sub- Instead, Alaska set a 4% all race-neutral goal in each year. mit an annual DBE goal to FHWA for FFY 2006.

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27 Table 4. (Continued). FHWA DBE Overall FHWA DBE Overall FHWA DBE Overall State Goal 2006 Method Goal 2007 Method Goal 2008 Method Nebraska 2 2 2 New Hampshire 2 2 2 New Mexico 2 2 2 North Dakota 2 2 2 Oklahoma 2 2 2 Oregon 2 2 2 Rhode Island 2 2 2 South Carolina 2 2 2 South Dakota 2 2 2 Texas 2 2 2 Utah 2 2 2 Vermont 2 2 2 Wisconsin 2 2 2 Wyoming 2 2 2 Indiana 5 5 5 Iowa 5 5 5 Kansas 5 5 5 Kentucky 5 5 5 Michigan 5 5 5 Ohio 5 5 5 Pennsylvania 5 5 5 Tennessee 5 5 5 Virginia 5 5 5 West Virginia 5 5 5 Maine 2 1, 2 & 4 1, 2 & 4 Note: Method 1 corresponds to 49 C. F. R. 26.45(c)(1) (used DBE directories and Census Bureau data); method 2 or 5 corresponds to 49 C. F. R. 26.45(c)(2) or (c)(5) (used bidders list or other types of contractor lists); method 3 corresponds to 49 C. F. R. 26.45(c)(3) (used disparity or availability study) method 4 corresponds to 49 C. F. R. 26.45(c)(4) (used the goal of another DOT recipient, 26.45(c)(5) "Use an alternative method."

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6% 8% 10% 76% DBE Directories & Census Data Bidders List or Similar Disparity or Availability Study Other Methods Source: Table 15 Figure 2. Goal-setting methods used by state DOTs, FFY 2006. 4% 8% 12% 76% DBE Directories & Census Data Bidders List or Similar Disparity or Availability Study Other Methods Source: Table 15 Figure 3. Goal-setting methods used by state DOTs, FFY 2007. 6.1% 6.1% 16% 71% DBE Directories & Census Data Bidders List or Similar Disparity or Availability Study Other Methods Source: Table 15 Figure 4. Goal-setting methods used by state DOTs, FFY 2008.