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68 APPENDIX C Legal Standards for Race-Conscious Government Contracting Programs The project to develop the National Model Disparity Study following are the evidentiary tests that state DOTs must con- and Request for Proposals for state DOTs seeks to address the sider in evaluating their responses to judicial opinions, as well evidentiary tests created by the federal courts that govern the as to the mandates of Part 26. DBE Program for federally assisted transportation contracts.217 It is in response to these strictures that disparity studies for City of Richmond v. J.A. Croson Co.219 public contracts were first conducted. It is therefore crucial to canvass the state of the law to develop national guidelines for City of Richmond v. J.A. Croson Co. established the broad the examination of evidence of discrimination in the market constitutional contours of permissible race-based public for federally assisted transportation contracts. contracting programs. Reversing long-established law, the Specifically, we "prepare[d] an analysis of the federal DBE Supreme Court for the first time extended the highest level goal-setting regulations and case law in all federal circuits con- of judicial examination from measures designed to limit the sidering challenges to the constitutionality of the U.S. Dis- rights and opportunities of racial and ethnic minorities to leg- advantaged Business Program. Identify common themes and islation that benefits these historic victims of discrimination. key distinguishing factors in state DOT DBE programs that Strict scrutiny requires that a government entity prove both its influenced the court ruling on constitutionality."218 "compelling interest" in remedying identified discrimination What follows is our detailed analysis of the case law and reg- based upon a "strong basis in evidence," and that the measures ulations relevant to the development of a disparity study model, adopted to remedy that discrimination are "narrowly tailored" with the focus on evidentiary issues. We begin with a review of to that evidence. However benign the government's motive, the outlines of strict constitutional scrutiny as applied to public race is always so suspect a classification that its use must pass contracts, then discuss the particular cases that have construed the highest constitutional test of "strict scrutiny." how those outlines apply to the DBE program and its imple- The Court struck down Richmond's Minority Business menting regulations under 49 C.F.R. Part 26. Enterprise Plan that required prime contractors awarded city construction contracts to subcontract at least 30% of the project to Minority Business Enterprises (MBEs). A business Strict Scrutiny Standard located anywhere in the country that was at least 51% owned Since the initial application of strict constitutional scrutiny and controlled by "Black, Spanish-speaking, Oriental, Indian, almost 20 years ago to race-conscious public contracting pro- Eskimo, or Aleut" citizens was eligible to participate. The plan grams, federal appellate and district courts have developed was adopted after a public hearing at which no direct evidence parameters for establishing a government's compelling inter- was presented that the city had discriminated on the basis of est in remedying discrimination and evaluating whether the race in awarding contracts or that its prime contractors had remedies adopted to address that discrimination are narrowly discriminated against minority subcontractors. The only evi- tailored. This area of constitutional law is complex and con- dence before the city council was: (a) Richmond's popula- stantly shifting, and cases are usually quite fact bound. The tion was 50% black, yet less than 1% of its prime construction contracts had been awarded to minority businesses; (b) local 217 49 C.F.R. Part 26. 218 Task 1, Scope of Work and Associated Tasks. 219 488 U.S. 469 (1989).

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69 contractors' associations were virtually all white; (c) the city Race is so suspect a basis for government action that attorney's opinion that the plan was constitutional; and more than "societal" discrimination is required to restrain (d) general statements describing widespread racial discrimina- racial stereotyping or pandering. Croson provided no defi- tion in the local, Virginia, and national construction industries. nition of "societal" discrimination or any guidance about The plaintiff had submitted the single bid to furnish and how to recognize the ongoing realities of history and cul- install specified plumbing fixtures in the City jail. It was unable ture in evaluating race-conscious programs. The Court to meet the 30% set aside because there were no minority sup- simply asserted that: pliers either interested in or able to submit a timely quote in response to Croson's request for quotations, in part because the [w]hile there is no doubt that the sorry history of both private and supplier for one of the two designated fixture companies had public discrimination in this country has contributed to a lack of already quoted directly to Croson. Twenty-one days after bid opportunities for black entrepreneurs, this observation, standing alone, cannot justify a rigid racial quota in the awarding of pub- opening, an MBE submitted a quote for one of the manufac- lic contracts in Richmond, Virginia. . . . [A]n amorphous claim turers that was significantly higher than the prime contractor that there has been past discrimination in a particular industry had used to estimate its bid and higher than quotes received cannot justify the use of an unyielding racial quota. It is sheer from non-MBEs; it also was not an authorized supplier. Rich- speculation how many minority firms there would be in Rich- mond refused to grant a waiver or to increase the contract price mond absent past societal discrimination.224 to reflect the costs of using the MBE.220 Croson sued. In affirming the court of appeals' determination that the Richmond's evidence was found to be lacking in every plan was unconstitutional, the plurality opinion rejected the respect. The city could not rely upon the disparity between its extreme positions that local governments either have carte utilization of MBE prime contractors and Richmond's minor- blanche to enact race-based legislation or must prove their ity population because not all minority persons would be qual- own illegal conduct: ified to perform construction projects; general population representation is irrelevant. No data were presented about the [A] state or local subdivision . . . has the authority to eradicate availability of MBEs in either the relevant marketplace or their the effects of private discrimination within its own legislative utilization as subcontractors on city projects. Justice O'Connor jurisdiction. . . . [Richmond] can use its spending powers to remedy private discrimination, if it identifies that discrimination speculated that the extremely low membership of minority with the particularity required by the Fourteenth Amend- firms in local contractors' associations could be explained by ment. . . . [I]f the City could show that it had essentially become "societal" discrimination or perhaps blacks' lack of interest a "passive participant" in a system of racial exclusion . . . [it] in participating as business owners in the construction could take affirmative steps to dismantle such a system.221 industry. To be relevant, the city would have to demonstrate statistical disparities between eligible MBEs and actual Strict scrutiny of race-based remedies is required to deter- membership in trade or professional groups. Further, Rich- mine whether racial classifications are in fact motivated by mond presented no evidence concerning enforcement of its either notions of racial inferiority or blatant racial politics. own anti-discrimination ordinance. This highest level of judicial review "smokes out" illegitimate uses of race by ensuring that the legislative body is pursuing In the case at hand, the City has not ascertained how many a goal important enough to warrant use of a highly suspect minority enterprises are present in the local construction market tool.222 It further ensures that the means chosen "fit" this nor the level of their participation in City construction projects. compelling goal so closely that there is little or no possibility The City points to no evidence that qualified minority contrac- that the motive for the classification was illegitimate racial tors have been passed over for City contracts or subcontracts, either as a group or in any individual case. Under such circum- prejudice or stereotype. The Court made clear that strict stances, it is simply impossible to say that the City has demon- scrutiny seeks to expose racial stigma; racial classifications are strated "a strong basis in evidence for its conclusion that reme- said to create racial hostility if they are based on notions of dial action was necessary."225 racial inferiority.223 Richmond could not rely upon Congress' determination that there has been nationwide discrimination in the con- 220 Id. at 48183. 221 Id. at 49192. struction industry. Congress recognized that the scope of the 222See also Grutter v. Bollinger, 539 U.S. 306, 327 (2003) ("Not every decision problem varies from market to market, and a local govern- influenced by race is equally objectionable, and strict scrutiny is designed to pro- vide a framework for carefully examining the importance and the sincerity of the reasons advanced by the governmental decision maker for the use of race in that particular context."). 224 Id. at 499. 223 225 488 U.S. at 493. Id.at 510.

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70 ment is further constrained by the Fourteenth Amendment's presented no evidence regarding the availability of MBEs to Equal Protection Clause.226 perform as prime contractors or subcontractors and no evi- The foregoing analysis was applied only to blacks. The Court dence of the utilization of minority-owned subcontractors on then emphasized that there was "absolutely no evidence" city contracts.230 Nor did Richmond attempt to link the rem- against other nonwhites. "The random inclusion of racial edy it imposed to any evidence specific to the Program; it used groups that, as a practical matter, may have never suffered from the general population of the city rather than any measure of discrimination in the construction industry in Richmond, sug- business availability. The "city has not ascertained how many gests that perhaps the City's purpose was not in fact to remedy minority enterprises are present in the local construction past discrimination."227 industry nor the level of their participation in city construction Having found that Richmond had not presented evi- projects. The city points to no evidence that qualified minority dence in support of its compelling interest in remedying contractors have been passed over for city contracts or subcon- discrimination--the first prong of strict scrutiny--the Court tracts, either as a group or in any individual case."231 went on to make two observations about the narrowness of Some commentators have taken this dearth of any partic- the remedy--the second prong of strict scrutiny. First, Rich- ularized proof and argued that only the most particularized mond had not considered race-neutral means to increase proof can suffice in all cases. They leap from the Court's rejec- MBE participation. Second, the 30% quota had no basis in evi- tion of Richmond's reliance on only the percentage of blacks dence, and was applied regardless of whether the individual in the city's population to a requirement that only firms that MBE had suffered discrimination.228 Further, Justice O'Con- bid or have the "capacity" or "willingness" to bid on a partic- nor rejected the argument that individualized consideration ular contract at a particular time can be considered in deter- of plan eligibility is too administratively burdensome. mining whether discrimination against black businesses Apparently recognizing that the opinion might be miscon- infects the local economy.232 strued to categorically eliminate all race-conscious contract- This contention has been rejected explicitly by some ing efforts, Justice O'Connor closed with these admonitions: courts. For example, in denying the plaintiff firm's summary judgment motion to enjoin the City of New York's M/WBE Nothing we say today precludes a state or local entity from taking construction ordinance, the court stated that: action to rectify the effects of identified discrimination within its jurisdiction. If the City of Richmond had evidence before it that . . . it is important to remember what the Croson plurality opin- non-minority contractors were systematically excluding ion did and did not decide. The Richmond program, which the minority businesses from subcontracting opportunities, it could Croson Court struck down, was insufficient because it was based take action to end the discriminatory exclusion. Where there is a on a comparison of the minority population in its entirety in significant statistical disparity between the number of qualified Richmond, Virginia (50%) with the number of contracts minority contractors willing and able to perform a particular awarded to minority businesses (0.67%). There were no statistics service and the number of such contractors actually engaged by presented regarding number of minority-owned contractors in the locality or the locality's prime contractors, an inference of dis- the Richmond area, Croson, 488 U.S. at 499, and the Supreme criminatory exclusion could arise. Under such circumstances, the Court was concerned with the gross generality of the statistics City could act to dismantle the closed business system by taking used in justifying the Richmond program. There is no indication appropriate measures against those who discriminate based on that the statistical analysis performed by [the consultant] in the race or other illegitimate criteria. In the extreme case, some form present case, which does contain statistics regarding minority of narrowly tailored racial preference might be necessary to break contractors in New York City, is not sufficient as a matter of law down patterns of deliberate exclusion. . . . Moreover, evidence of under Croson.233 a pattern of individual discriminatory acts can, if supported by appropriate statistical proof, lend support to a local government's Further, Richmond made no attempt to narrowly tailor a determination that broader remedial relief is justified.229 goal for the procurement at issue that reflected the reality of While much has been written about Croson, it is worth stressing in the context of the Model Study inquiry what evi- 230Id. at 502. 231 dence was and was not before the Court. First, Richmond Id. at 510. 232See, e.g., Northern Contracting, Inc. v. Illinois Department of Transportation, 473 F.3d 715, 723 (7th Cir. 2007) (Northern Contracting III). 233North Shore Concrete and Associates, Inc. v. City of New York, 1998 U.S. Dist. 226Id. at 504; but see Adarand v. Pea, 515 U.S. 200 (1995) (Adarand III) (apply- Lexis 6785, *2829 (E.D. N.Y. 1998; see also Harrison & Burrowes Bridge Con- ing strict scrutiny to Congressional race-conscious contracting measures) (dis- structors, Inc. v. Cuomo, 981 F.2d 50, 6162 (2nd Cir. 1992) ("Croson made only cussed infra). broad pronouncements concerning the findings necessary to support a state's 227488 U.S. at 510. affirmative action plan"); cf. Concrete Works of Colorado, Inc. v. City and County 228See Grutter, 539 U.S. at 336337 (quotas are not permitted; race must be used of Denver 36 F.3d 1513, 1528 (10th Cir. 1994) (Concrete Works II) (City may rely in a flexible, nonmechanical way). on "data reflecting the number of MBEs and WBEs in the marketplace to defeat 229 488 U.S. at 509 (citations omitted). the challenger's summary judgment motion").

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71 the project. Arbitrary quotas, and the unyielding application striking down race-based measures.239 Further, as observed by of those quotas, did not support the stated objective of ensur- the Seventh Circuit Court of Appeals, applying intermediate ing equal access to city contracting opportunities. The Croson scrutiny to gender "creates the paradox that a public agency may Court said nothing about the constitutionality of flexible sub- provide stronger remedies for sex discrimination than for race contracting goals based upon the availability of MBEs to per- discrimination; it is difficult to see what sense that makes."240 form the scopes of the contract in the government's local In any event, courts reviewing the constitutionality of the marketplace. The federal DBE Program, as discussed below, DBE program have applied strict scrutiny to the gender-based avoids these pitfalls. Part 26 "provides for a flexible system of preference.241 The Ninth Circuit noted that "intermediate contracting goals that contrasts sharply with the rigid quotas scrutiny would not yield a different result than that obtained invalidated in Croson."234 under strict scrutiny's more stringent standard."242 Therefore, While strict scrutiny is designed to require clear articula- state DOTs would be wise to meet the rigors of strict scrutiny tion of the evidentiary basis for race-based decision making for gender preferences. and careful adoption of remedies to address discrimination, it does not, as Justice O'Connor stressed, have to be an impos- Establishing a "Strong Basis in Evidence" sible test that no proof can meet. Strict scrutiny need not be for Local Race-Conscious Contracting Programs "fatal in fact."235 The Croson Court's guidance regarding the type of evidence necessary to support a race-conscious contracting program Preferences for Women gave rise to the "disparity study." Dozens of cities, states, and Courts usually review gender-based government decision other local entities engaged consultants to conduct studies making under "intermediate scrutiny," which requires that to provide statistical and anecdotal evidence of discrimina- gender-based classifications be supported by an "exceedingly tion against MBEs and WBEs. These studies used various persuasive justification" and be "substantially related" to the approaches to estimating the availability of "ready, willing, objective. Whether affirmative action procurement programs and able" MBEs and WBEs; determining the entity's utilization that benefit women are subject to the lesser constitutional of such firms as prime contractors and subcontractors on its standard of "intermediate scrutiny" has yet to be settled by the projects; analyzing whether there was a large and statistically Supreme Court.236 Most courts have applied intermediate significant disparity between availability and utilization; and scrutiny to local program preferences for women,237 and then gathering anecdotal information about the experiences of evaluated the female preference under that standard.238 This MBEs and WBEs on public and private contracts. may be a distinction without meaningful difference, as only one Despite millions of dollars spent on such analyses, the results post-Croson court has upheld gender-based provisions while were often econometrically unsound,243 politically motivated,244 and legally inadequate. For nearly 15 years after Croson, the fed- 234Western States Paving Co., Inc. v. Washington Department of Transportation, 407 F.3d 983, 994 (9th Cir. 2005), cert. denied, 546 U.S. 1170 (2006). 239Coral Construction, 941 F.2d at 932 (applying intermediate scrutiny); cf. Western 235See Adarand III, 515 U.S. at 237. States, 407 F.3d. at 991 n.6 (no need to conduct a separate analysis of sex-based clas- 236 Cf. United States v. Virginia, 518 U.S. 515 (1996) (applying standard of sifications under intermediate scrutiny because it would not yield a different result "exceedingly persuasive justification" in striking down Virginia Military from strict scrutiny); F. Buddie Contracting Ltd., v. Cuyahoga Community College Institute's males only admissions policy); Northern Contracting III, 473 District, 31 F.Supp.2d. 571, 584 n.18 (N.D. Oh. 1998) ("If Plain-tiff had made the F.3d at 720 ("IDOT does not argue for a more permissive standard for its gen- requisite showing of imminent harm this Court is convinced that . . . CCC's FBE der-based initiatives and therefore we will apply strict scrutiny to the entire program would likewise fail [as did the MBE program]."). 240Builders Association of Greater Chicago v. County of Cook, 256 F.3d 642, 644 program."). 237See, e.g., Associated Utility Contractors of Maryland, Inc. v. Mayor and City (7th Cir. 2001) (Cook II). 241Adarand Constructors, Inc. v. Slater, 228 F.3d 1147, 1163 (10th Cir. 2000) Council of Baltimore, 83 F.Supp.2d 613, 620 (D. Md. 2000) (Baltimore I); but see Brunet v. City of Columbus, 1 F.3d 390, 404 (6th Cir. 1993), cert. denied sub nom (Adarand VII), cert. granted, 532 U.S. 941, then dismissed as improvidently granted, 534 U.S. 103 (2001) (applying a compelling interest analysis); Sher- Brunet v. Tucker, 510 U.S. 1164 (1994) (applying strict scrutiny). 238See, e.g., Northern Contracting, Inc. v. Illinois Department of Transportation, 2004 brooke Turf, Inc. v. Minnesota Department of Transportation, 345 F.3d. 964, 969 (8th Cir. 2003), cert. denied, 541 U.S. 1041 (2004) (same); Northern Contracting, U.S. Dist. LEXIS, 3226, *44 (N.D. Ill., Mar. 3, 2004) (Northern Contracting I) Inc. v. Illinois Department of Transportation, 473 F.3d 715, 720 (7th Cir. 2007) (women's status as presumptively socially disadvantaged passes intermediate (Northern Contracting III) (same). scrutiny); W.H. Scott Construction Co., Inc. v. City of Jackson, Mississippi, 199 242Western States, 407 F.3d at 990 n.6. F.3d 206, 215 n.9 (5th Cir. 1999); Engineering Contractors Association of South 243"Econometrics is the field of economics that concerns itself with the applica- Florida, Inc. v. Metropolitan Dade County, 122 F.3d 895, 907910 (11th Cir. tion of statistical inference to the empirical measurement of relationships pos- 1997) (Engineering Contractors II); Concrete Works IV, 36 F.3d at 1519; Contractors tulated by economic theory." (p. 1), Greene, William H. 1997. Econometric Association of Eastern Pennsylvania v. City of Philadelphia, 6 F.3d 990. 1009 (3rd Analysis, 3rd ed. Upper Saddle River, New Jersey: Prentice Hall. Cir. 1993) (Philadelphia II); Coral Construction Co. v. King County, 941 F.2d. 910, 244See, e.g., Associated General Contractors of America v. City of Columbus, 936 F. 93031 (9th Cir. 1991); H.B. Rowe, Inc. v. Tippett, 2008 U.S. Dist. Lexis 100569, Supp. 1363, 143133 (S.D. Ohio 1996) ("political pressure played a role in the *25 (E.D. N.C. 2008). city's adoption" of the M/WBE program and the study consultants).

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72 eral courts had struck down almost every local M/WBE pro- was 11 times higher in Michigan; over 13 times higher in gram for lacking sufficient evidence of discrimination and often Delaware; and over 120 times higher in Rhode Island.258 adopting insufficiently narrowly tailored remedies.245 Whatever the weaknesses in the disparity studies, it became Loss of race-conscious remedies led to almost immediate and clear that, absent government intervention, ready, willing, drastic reductions in the participation of M/WBEs as public and able minority- and women-owned firms were excluded subcontractors. For example, the City of Richmond's minority from subcontracting opportunities on government projects. business participation plummeted 93% within the first year Even the use by agencies of race-neutral measures such as after Croson enjoined its program.246 Dramatic declines in technical assistance, increased outreach, and "unbundling" minority business utilization also occurred in Atlanta (60%);247 large projects failed to ensure equal access to contracting Fulton County, Georgia (90%);248 Philadelphia (97%);249 Hills- opportunities without DBE goals.259 borough County, Florida (99%);250 Tampa (99%);251 San Jose, A different approach was clearly necessary if such dramatic California (80%);252 Cook County, Illinois (70%);253 and Elyria, declines in public contracting participation by minorities and Ohio (a suburb of Cleveland) (98%).254 Large declines were women were to be forestalled. In 1999, a sea change occurred reported as well by officials in Detroit,255 Columbus,256 and in the way the issue of contracting affirmative action was Washington, D.C.257 approached by its proponents. Similar decreases were observed when DBE utilization First, the U.S.DOT revised its DBE Program in 1998 to mandated on federally assisted transportation projects was address strict scrutiny as required by the Supreme Court in compared to M/WBE utilization in the same state on state Adarand v. Pea.260 Second, in 1997, a local government funded transportation projects without race-conscious goals. finally employed an improved disparity study method, which Data from 1996 for Arizona, Arkansas, Connecticut, Dela- we refer to as the "law and economics approach," to defend ware, Louisiana, Michigan, Missouri, Nebraska, Oregon, and against a challenge to the constitutionality of its M/WBE Pro- Rhode Island, for example, showed that DBE participation on gram. The City and County of Denver's Program defense Federal-aid contracts was several times higher than M/WBE relied primarily on expert reports and testimony derived participation on state-funded contracts in the same state. It from an economic model of business discrimination.261 Den- ver recognized that the proper inquiry is not only whether disparities remain despite the operation of its affirmative action program (a statistical question to which many dispar- 245See, e.g., Associated General Contractors of Ohio, Inc. v. Drabik, 214 F.3d 730 ity studies, then and now, continue to limit themselves) but (6th Cir. 2000); Associated General Contractors of Maryland, Inc. v. Mayor of also whether disparities remain when remedial intervention Baltimore, 83 F.Supp.2d 613 (D. Md. 2000) (Baltimore I); Contractors Associ- is not present in the marketplace, as reflected by M/WBE par- ation of Eastern Pennsylvania, Inc. v. City of Philadelphia, 91 F.3d 586 (3d Cir. ticipation on contracts without affirmative action goals in the 1996) (Philadelphia II); Engineering Contractors Association of South Florida, Inc. v. Metro. Dade County, 122 F.3d 895 (11th Cir. 1997) (Engineering Con- public sector, the private sector, or both. tractors II); O'Donnell Construction Co. v. District of Columbia, 963 F.2d 420 The results of this improved approach to conducting dis- (D.C. Cir. 1992); W.H. Scott Construction Co. v. City of Jackson, 199 F.3d 206 parity research and defending challenges to race-conscious (5th Cir. 1999); Webster v. Fulton County, 51 F.Supp.2d 1354 (N.D. Ga. 1999), contracting programs have been dramatic for local programs. aff'd, 218 F.3d 1267 (11th Cir. 2000). 246Brimmer and Marshall Economic Consultants, Inc. June 1990. Public Policy Denver's M/WBE Program was upheld by the Tenth Court of and Promotion of Minority Economic Development: City of Atlanta and Fulton Appeals, and the Supreme Court declined review.262 The City County, Georgia: Part I. Washington, D.C., p. 10. of Chicago's M/WBE Program for local construction con- 247Id. 248Id. at 1011. tracts was also held to meet compelling interest using this 249United States Commission on Minority Business Development. 1992, Final framework.263 Report (Washington, D.C.: U.S. Government Printing Office), at 99. 250Id. 251Id. 258------. Telephone interview with Attorney D. Goldberg, Office of General 252Id. Counsel, U.S. Department of Transportation, February 28, 1998; and Statement 253Expert Report, Builders Association of Greater Chicago v. City of Chicago, et al., of Nancy E. McFadden, General Counsel, U.S. Department of Transportation, No. 96C 1122 (June 2003). before the Subcommittee on Constitution, Federalism, and Property Rights of 254Jon Wainwright telephone interview with L. Johnson, City of Elyria Office of the U.S. Senate Committee on the Judiciary. Sept. 30, 1997, at 2. Contract Compliance, Feb. 27, 1998. 259See, e.g., NERA Economic Consulting. 2006b. Race, Sex, and Business Enter- 255------. Telephone interviews with K. Dones-Carter and D. Teeter, City prise: Evidence from the State of Maryland (Final Report), Chapter IX. Council Research Department, City of Detroit Feb. 27, 1998. 260515 U.S. 200 (1995) (applying strict scrutiny to federal legislation). 256------. Telephone interview with M. Carter, City of Columbus Equal Busi- 261Denver had commissioned disparity studies in 1990, 1991, 1995, and 1997. ness Opportunity Commission, Feb. 27, 1998. 262Concrete Works of Colorado, Inc. v. City and County of Denver, 321 F.3d 950 257------. Telephone interview with B. Kim, Staff Attorney, Maryland Depart- (10th Cir. 2003), cert. denied, 540 U.S. 1027 (2003) (Concrete Works IV). ment of Transportation, concerning the Washington Suburban Sanitary 263Builders Association of Greater Chicago v. City of Chicago, 298 F.Supp.2d 725 Commission, Feb. 27, 1998. (N.D. Ill. 2003).

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73 The Denver and Chicago decisions provide the most When the Tenth Circuit reversed and remanded for trial in detailed analysis of the evidence necessary to establish that the Concrete Works II, the city commissioned another study. The government would be a passive participant in a discrimina- 1995 study used U.S. Census Bureau data to determine MBE tory marketplace in the absence of race-based remedies. Par- and WBE availability and utilization in the construction and ticularly in light of the Ninth Circuit's opinion in Western design industries in the Denver Metropolitan Statistical Area States, these decisions provide important guidance to state (MSA). It calculated separate disparity indices for firms with DOTs in determining what evidence is relevant to whether and without employees. Census data were also used to examine DBEs experience discrimination in their marketplaces such average revenues per employee and rates of self-employment. that race-conscious subcontracting goals are needed to level Disparities in self-employment rates persisted even after hold- the playing field for DBEs. ing education and length of work experience constant. A tele- phone survey to determine the availability and utilization of Concrete Works, Inc. v. City and County of Denver. M/WBEs in the Denver MSA showed large disparities in the Denver's local program had been challenged several years construction and professional design industries. The 1995 study earlier,264 and the trial was held in February 1999. Denver included discussion of a 1993 study for the Denver Housing adopted an ordinance in 1990 that provided for annual goals Authority which found disparities for M/WBEs in some areas of 16% for MBEs and 12% for WBEs in construction con- in some years, including those when it implemented an affirma- tracts, and 10% for both MBEs and WBEs in professional tive action program, and a 1992 study for the Regional Trans- design and construction services contracts. Bidders were to portation District that found large disparities for both prime meet contract-specific goals or make good faith efforts to do and subcontracting in the Denver marketplace. Based upon this so. The city revised the program in 1996 and 1998, reducing evidence, the city enacted the 1996 Ordinance. the annual goals for both MBEs and WBEs in construction In 1997, Denver commissioned another study to examine contracts to 10% and prohibiting M/WBE prime contractors whether discrimination limited the opportunities of M/WBEs from counting self-performed work toward the goals. After in construction projects of the type undertaken by the city. conducting surveys and hearings, Denver extended the pro- The court found this Study used a "more sophisticated" gram and increased the goals in 1998. method265 to calculate availability by: (1) specifically deter- At trial, Denver introduced evidence of its contracting activ- mining the city's geographic and procurement marketplace; ities dating back to the early 1970s. This consisted of reports of (2) using Dun & Bradstreet's Marketplace data to obtain the federal investigations into the utilization and experiences of total number of available firms and numerous directories to local MBEs and of the City's early affirmative action efforts. determine the number of M/WBEs; (3) conducting surveys to M/WBE participation dramatically increased when the city adjust for possible misclassification of the race and gender adopted its first MBE ordinance in 1984. of firms; and (4) presenting a final result of weighted averages To comply with Croson, the city commissioned a study to of availability for each racial group and women for both prime assess the propriety of the program. The 1990 study found large and subcontracts. disparities between the availability and utilization of M/WBEs The 1997 study then compared M/WBE availability and uti- on city projects without goals. It likewise found large dispari- lization in the Colorado construction industry. It also examined ties on private sector projects without goals. Interviews and tes- 1987 Census data from the Survey of Minority-Owned Business timony revealed continuing efforts by white male contractors and the Survey of Women-Owned Businesses, the most cur- to circumvent the goals. After reviewing the statistical and rent then available. All comparisons yielded large and statis- anecdotal evidence, the city adopted the 1990 Ordinance. A tically significant disparities. The 1997 study also found that 1991 study of goods, services, and remodeling industries also the potential availability of M/WBEs, as measured by the rates found large disparities for city contracts not subject to goals. at which similarly situated white males form businesses, was sig- nificantly greater than their actual availability. The study next 264 examined whether minorities and women in the construction Plaintiff Concrete Works of Colorado, Inc. (CWC), a construction firm owned by a white male, sued the City in 1992, alleging that it had been denied three con- industry earned less than white males with similar characteris- tracts for failure to meet the goals or to make good faith efforts and seeking tics. Large and statistically significant disparities were found for injunctive relief and money damages. The district court granted the City's all groups except Asian Americans. A mail survey was con- motion for summary judgment. Concrete Works of Colorado, Inc. v. City & County of Denver, 823 F.Supp. 821 (D. Colo. 1993) (Concrete Works I). The Tenth ducted to obtain anecdotal evidence of the experiences of MBEs Circuit reversed, holding that genuine issues of material fact precluded summary and WBEs and non-M/WBEs in the construction industry. judgment. Concrete Works of Colorado, Inc. v. City & County of Denver, 36 F.3d Again, with the exception of Asian Americans, minorities, 1513 (10th Cir. 1994) (Concrete Works II). The district court, after a bench trial, held the ordinance to be unconstitutional. Concrete Works of Colorado, Inc. v. City & County of Denver, 86 F.Supp. 2d 1042 (D. Colo. 2000) (Concrete Works III). Denver appealed. 265 321 F.3d at 966.

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74 and women with similar characteristics experienced much resulted in discrimination. Neither was Denver required to greater difficulties than did their white male counterparts. A demonstrate that the purpose of any such practice or policy follow-up telephone survey indicated that the disparities were was to disadvantage women or minorities. To impose such a even greater than first indicated. Based upon the 1997 study, burden on a municipality would be tantamount to requiring the city enacted the 1998 Ordinance. proof of discrimination and would eviscerate any reliance the At trial, the city also introduced additional, comprehensive municipality could place on statistical studies and anecdotal anecdotal evidence. M/WBEs testified that they experienced evidence."270 Similarly, the trial court was wrong to reject the difficulties in prequalifying for private sector jobs; their low statistical evidence because such evidence cannot identify the bids were rejected; they were paid more slowly than non- individuals responsible for the discrimination.271 M/WBEs; they were charged more for materials than non- Contrary to the district court's conclusion, the burden M/WBEs; they were often required to do additional work not of compliance need not be placed only upon those firms required of white males; and there were barriers to joining directly responsible for the discrimination. The proper focus trade unions and associations. There was extensive testimony is whether the burden on third parties is "too intrusive" or detailing the difficulties M/WBEs suffered in obtaining lines "unacceptable."272 of credit. The "most poignant" testimony involved blatant Croson's admonition that "mere societal" discrimination is harassment suffered at work sites, including physical assaults. not enough to meet strict scrutiny273 does not apply where the The trial court found for the plaintiff. government presents evidence of discrimination in the indus- The Tenth Circuit reversed and directed the entry of judg- try targeted by the program. "If such evidence is presented, it ment for Denver. The district court's legal framework "mis- is immaterial for constitutional purposes whether the indus- state[d] controlling precedent and Denver's burden at trial."266 try discrimination springs from widespread discriminatory The government need not prove that the statistical infer- attitudes shared by society or is the product of policies, prac- ences of discrimination are "correct." Strong evidence sup- tices, and attitudes unique to the industry. . . . The genesis of porting the government's determination that remedial action the identified discrimination is irrelevant." The trial court is necessary need not be "irrefutable or definitive" proof of was wrong to require Denver to "show the existence of spe- discrimination. Statistical evidence creating inferences of dis- cific discriminatory policies and that those policies were more criminatory motivations is sufficient and therefore evidence than a reflection of societal discrimination."274 of marketplace discrimination can be used to meet strict The court further rejected the notion that a municipality scrutiny.267 It is the plaintiff who must prove by a preponder- must prove that it is itself guilty of discrimination to meet its ance of the evidence that such proof does not support those burden. Denver can show its compelling interest by "evidence inferences. of private discrimination in the local construction industry Croson does not require that each group included in the coupled with evidence that it has become a passive partici- ordinance suffer equally from discrimination. In contrast to pant in that discrimination . . . [by] linking its spending prac- Richmond, Denver introduced evidence of bias against each tices to the private discrimination."275 Denver further linked group; that is sufficient.268 its award of public dollars to discriminatory conduct through Nor must Denver demonstrate that the "ordinances will the testimony of M/WBEs that identified general contractors change discriminatory practices and policies" in the local who used them on City projects with M/WBE goals but marketplace; such a test would be "illogical" because firms refused to use them on private projects without goals. could defeat the remedial efforts simply by refusing to cease The court then turned to the evidence of discrimination discriminating.269 against M/WBEs in the market for commercial credit. The Next, a municipality need not prove that "private firms lending discrimination studies and business formation stud- directly engaged in any discrimination in which Denver pas- ies are relevant and probative because they show a strong link sively participates do so intentionally, with the purpose of dis- between the disbursement of public funds and the channel- advantaging minorities and women. . . . Denver's only burden ing of those funds due to private discrimination. "Evidence was to introduce evidence which raised the inference of dis- that private discrimination results in barriers to business for- criminatory exclusion in the local construction industry and mation is relevant because it demonstrates that M/WBEs are link its spending to that discrimination. . . . Denver was under no burden to identify any specific practice or policy that 270 Id. at 971. 271 Id. at 973. 266 Id. at 970. 272Id. 267 Id. at 975. 273See 488 U.S. at 497. 268Id. at 976. 274321 F.3d at 976. 269 275 Id. at 973 (emphasis in the original). Id. at 977.

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75 precluded at the outset from competing for public construc- ver construction industry."281 This "failure" of the legislative tion contracts. Evidence of barriers to fair competition is also body to somehow verify testimony had been a favorite shib- relevant because it again demonstrates that existing M/WBEs boleth of plaintiffs in other cases.282 are precluded from competing for public contracts."276 Plaintiff Finally, as for the narrow tailoring requirement of strict failed to present evidence to rebut the lending discrimination scrutiny, the court held that because plaintiff had waived its data, instead resting on its belief that such evidence is irrelevant. claim that the ordinances were not narrowly tailored at an Contrary to the trial court's ruling, the business formation stud- earlier stage in this litigation, the district court's holding in ies were not flawed because they did not control for "quality of Concrete Works I that the ordinances satisfy the other prong education," "culture" and "religion." Plaintiff failed not only to of strict scrutiny was affirmed. define such vague terms but also to conduct its own study con- trolling for these factors or to produce expert testimony that to Builders Association of Greater Chicago v. City of Chicago. do so would eliminate the disparities.277 After more than seven years of pretrial motions and discov- The district court also erred in rejecting the disparity studies ery and almost seven weeks of trial, the federal district court because it did not control for firm size, area of specialization, found that the City of Chicago proved its compelling interest and whether the firm had bid on city projects. The circuit court in remedying identified discrimination against black-, agreed with Denver's experts that while it may be true that Hispanic- and women-owned construction firms.283 The M/WBEs are smaller in general than white male firms, most court relied in large part on the statistical analysis that was construction firms are small and can expand and contract to similar to that upheld in Concrete Works. However, the pro- meet their bidding opportunities. Importantly, Denver estab- gram as implemented in 2003, which had not been reviewed lished that size and experience are not race- and gender-neutral since its inception in 1990, was not sufficiently narrowly tai- variables: "M/WBE construction firms are generally smaller and lored to meet strict constitutional scrutiny. The court stayed less experienced because of discrimination."278 Further, plaintiff the final order against operation of the Program for construc- failed to conduct any study showing that the disparities dis- tion contracts for six months to permit the city to review the appear when such variables are held constant. Likewise, it pre- ruling and adopt a new program. sented no evidence that controlling for firm specialization The opinion first reviews the historical proof of discrimina- explained the disparities. "Additionally, we do not read Croson tion against minorities, particularly blacks, in the Chicago con- to require disparity studies that measure whether construction struction industry. While not legally mandated, Chicago was a firms are able to perform a particular contract."279 segregated city and "City government was implicated in that That M/WBEs were overutilized on city projects with goals history." After the election of Harold Washington as the goes only to the weight of the evidence because it reflects the first black mayor, several reports focused on the exclusion effects of a remedial program. Denver presented evidence of minorities and women from city procurement opportu- that goals and nongoals projects were similar in purpose and nities as well as pervasive employment discrimination by scope and that the same pool of contractors worked on both city departments. Mayor Washington imposed an executive types. "Particularly persuasive" was evidence that M/WBE order mandating that at least 25% of city contracts be awarded participation declined significantly when the program was to minority-owned businesses and 5% to women-owned amended in 1989. The "utilization of M/WBEs on City proj- businesses. ects has been affected by the affirmative action programs that In the wake of Croson, Chicago commissioned a Blue Rib- have been in place in one form or another since 1977. Thus, bon Panel to recommend an effective program that would sur- the non-goals data is the better indicator of discrimination in vive constitutional challenge. Based upon the panel's report, public contracting" and supports the position that discrimi- and 18 days of hearings with over 40 witnesses and 170 exhibits, nation existed before the enactment of the ordinances.280 Chicago adopted a new program in 1990 that retained the There is no requirement that anecdotal testimony be veri- 25%/5% goals; added a Target Market, wherein contracts were fied. "Denver was not required to present corroborating evi- limited to bidding only by M/WBEs; and provided that larger dence and CWC was free to present its own witnesses to construction contracts could have higher goals. either refute the incidents described by Denver's witnesses or The Builders Association of Greater Chicago challenged to relate their own perceptions on discrimination in the Den- this ordinance in 1996. A similar suit was filed against Cook 276 Id. 281Id. at 989. 277 Id. at 979. 282See, e.g., Builders Association of Greater Chicago v. County of Cook, 123 278Id. at 983 (emphasis in the original). F.Supp.2d 1087 (N.D. Ill. 2000) (BAGC v. Cook). 279Id. at 98788 (emphasis in the original). 283Builders Association of Greater Chicago v. City of Chicago, 298 F. Supp.2d 725 280 Id. (N.D. Ill. 2003).

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76 County's Program, which was declared unconstitutional rowly tailored to address these market distortions and barri- in 2000.284 ers because: The court held that the playing field for minorities and women in the Chicago area construction industry was still There was no meaningful individualized review of M/WBEs' not level. That does not mean, however, that speculation eligibility; about the greater number of M/WBEs that did exist in the There was no sunset date for the ordinance or any means absence of discrimination is sufficient to support a current to determine a date; race-based remedy. At the same time, that there was perhaps The graduation threshold of $27.5 million was very high overutilization of M/WBEs on city projects was not sufficient and few firms have graduated; to abandon remedial efforts, as that result is "skewed by the There was no personal net worth limit; program itself." The percentages operated as quotas unrelated to the num- The city presented a great amount of statistical evidence. ber of available firms; Despite the plaintiff's attacks about over-aggregation and dis- Waivers were rarely granted; aggregation of data and which firms were included in the No efforts were made to impact private sector utilization analyses, "a reasonably clear picture of the Chicago construc- of M/WBEs; and tion industry emerged. . . . While the size of the disparities Race-neutral measures had not been promoted, such as was disputed, it is evident that minority firms, even after linked deposit programs, quick pay, contract downsizing, adjustment for size, earn less and work less, and have less sales restricting prime contractors' self-performance, reducing compared to other businesses." bonds and insurance requirements, local bid preferences Further, while it is somewhat unclear whether disparities for subcontractors, and technical assistance. for Asians and Hispanics result from discrimination or the lan- guage and cultural barriers common to immigrants, there were Chicago is the only city ever to have received a stay to two areas "where societal explanations do not suffice." The first permit revision of its program to meet narrow tailoring. It is the market failure of prime contractors to solicit M/WBEs for amended its ordinance to meet the court's 2004 deadline and nongoals work. Chicago's evidence was consistent with that continues to implement M/WBE subcontracting goals with- presented of the effects of the discontinuance or absence of out interruption. race-conscious programs throughout the country. Not only did the plaintiff fail to present credible alternative explanations for this universal phenomenon but also this result "follows as Narrowly Tailoring a Race-Conscious Program a matter of economics. . . . [P]rime contractors, without any Even if a jurisdiction has a strong basis in evidence to believe discriminatory intent or bias, are still likely to seek out the sub- that race-based measures are needed to remedy identified dis- contractors with whom they have had a long and successful crimination, the program must be narrowly tailored to that evi- relationship. . . . [T]he vestiges of past discrimination linger on dence. The courts have repeatedly examined the following fac- to skew the marketplace and adversely impact M/WBEs dis- tors in determining whether race-based remedies are narrowly proportionately as more recent entrants to the industry. . . . tailored to achieve their purpose: [T]he City has a compelling interest in preventing its tax dollars from perpetuating a market so flawed by past discrim- The efficacy of race-neutral remedies at overcoming iden- ination that it restricts existing M/WBEs from unfettered com- tified discrimination; petition in that market." The relationship of numerical benchmarks for government The judge also relied upon the city's evidence of discrimi- spending to the availability of minority- and women-owned nation against minorities in the market for commercial loans. firms and to subcontracting goal-setting procedures; Even the plaintiff's experts were forced to concede that, at The flexibility of the program requirements, including the least as to Blacks, credit availability appeared to be a problem. provision for good-faith efforts to meet goals and contract Plaintiff's expert also identified discrimination against white specific goal-setting procedures; females in one data set. The congruence between the remedies adopted and the After finding that Chicago met the compelling interest beneficiaries of those remedies; prong, the court held that the city's program was not nar- Any adverse impact of the relief on third parties; and The duration of the program.285 284BAGC v. Cook. In contrast to the City of Chicago, Cook County presented very little statistical evidence and none directed toward establishing M/WBE avail- ability, utilization, economy-wide evidence of disparities, or other proof beyond 285United States v. Paradise, 480 U.S. 149, 171 (1987); see also Sherbrooke, 345 F.3d anecdotal testimony. at 971972; Drabik, 214 F.3d at 737738.

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77 The Fourth Circuit Court of Appeals has described the nar- The "random inclusion" of groups that may never have row tailoring requirements as follows: experienced discrimination in the entity's marketplace may indicate impermissible "racial politics."294 Similarly, the The preferences may remain in effect only so long as necessary to Seventh Circuit, in striking down Cook County's program, remedy the discrimination at which they are aimed; they may not remarked that a "state or local government that has dis- take on a life of their own. The numerical goals must be waivable if qualified minority applications are scarce, and such goals must criminated just against blacks may not by way of remedy bear a reasonable relation to minority percentages in the relevant discriminate in favor of blacks and Asian Americans and qualified labor pool, not in the population as a whole. Finally, the women."295 preferences may not supplant race-neutral alternatives for rem- However, at least one court has held that some quantum edying the same discrimination.286 of evidence of discrimination for each group is sufficient. The Tenth Circuit held that Croson does not require that It is imperative that remedies not operate as fixed quotas.287 each group included in the ordinance suffer equally from Firms that fail to meet the subcontracting goals but make good discrimination.296 faith efforts to do so must be eligible for contract awards.288 Next, the level of specificity at which to define beneficiaries Further, firms that meet the goals cannot be favored over must be addressed. Approaches range from a single goal like those who made good-faith efforts. In Croson, the Court refers the DBE Program that includes all racial and ethnic minorities approvingly to the contract-by-contract waivers used in the and white women297 to separate goals for each minority group U.S.DOT's DBE Program.289 This feature has been central to and women.298 Ohio's Program was specifically faulted for the holding that the DBE Program meets the narrow tailoring lumping together all "minorities," with the court questioning requirement.290 the legitimacy of forcing black contractors to share relief with The over- or under-inclusiveness of those persons to be included in the program is an additional consideration, and recent Asian immigrants.299 goes to whether the remedies truly target the evil identified.291 Third, program remedies should be limited to those The "fit" between the problem and the remedy manifests firms that have a nexus to the harms sought to be amelio- in three ways--which groups to include, how to define those rated. Some courts have held that state and local programs groups, and which persons will be eligible to be included must provide proof that the individual owner of a within those groups. firm seeking to benefit from the program has suffered First, the determination of presumptive social disadvan- discrimination.300 tage of each racial and ethnic group must be based upon the Failure to make "neutral" changes to contracting and pro- evidence.292 In striking down the District of Columbia's curement policies and procedures that disadvantage all small MBE program, the court noted that there were no "find- businesses may result in a finding that the program unduly ings with respect to discrimination in the construction burdens non-M/W/DBEs.301 However, "innocent" parties can industry against Hispanic Americans, Asian Americans, Pacific Islander Americans, or Native Americans, all of whom are included in the Act's definition of `minority.' "293 294 Webster, 51 F.Supp.2d at 13801381. 295 BAGC v. Cook County, 256 F.3d at 646 (no evidence of discrimination against any group other than Blacks). 296 286 Concrete Work IV, 321 F.3d at 9761. Maryland Troopers Association, Inc. v. Evans, 993 F.2d 1072, 107677 297See 49 C.F.R. 26.45(h) (overall goal must not be subdivided into group- (4th Cir. 1993) (citations omitted). 287See 49 C.F.R 26.43 (quotas are not permitted and set-aside contracts may be specific goals). 298See Engineering Contractors II, 122 F.3d at 900 (separate goals for blacks, used only in limited and extreme circumstances "when no other method could be reasonably expected to redress egregious instances of discrimination"). Hispanics and women). 299Associated General Contractors of Ohio v. Drabik, 214 F.3d 730, 737 (6th 288See, 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 percent- Cir. 2000) (Drabik II); see also Western States, 407 F.3d at 998 ("We have pre- ages cannot survive strict scrutiny."). viously expressed similar concerns about the haphazard inclusion of minority 289488 U.S. at 508; see also Adarand VII, 228 F.3d at 1181. groups in affirmative action programs ostensibly designed to remedy the 290See, e.g., Sherbrooke, 345 F.3d at 972. effects of discrimination."). 291Association for Fairness in Business, Inc. v. New Jersey, 82 F.Supp.2d 353, 360 300See, e.g., Drabik I, 50 F.Supp.2d at 766 (no "consideration given to whether the (D.N.J. 2000). particular MBE seeking a racial preference has suffered from the effects of past 292Contractors Association of Eastern Pennsylvania v. City of Philadelphia, 6 F.3d discrimination by the state or prime contractors."); Main Line Paving Co., Inc. v. 990, 1007 (3rd Cir. 1993) (Philadelphia II) (strict scrutiny requires data for each Board of Education, 725 F.Supp. 1349, 1362 (E.D. Penn. 1989) ("program con- minority group; data was insufficient to include Hispanics, Asians or Pacific tains no provisions to identify those who were victims of past discrimination and Islanders or Native Americans); cf. Northeastern Florida Chapter of the AGC v. to limit the program's benefits to them"). 301See Engineering Contractors Assoc. of South Florida, Inc. v. Metropolitan Dade Jacksonville, 508 U.S. 656, 660661 (1993) (new ordinance narrowed to blacks and women). County, 943 F.Supp. 1546, 15811582 (S.D. Fla. 1996) (Engineering Contrac- 293 O'Donnell, v. District of Columbia, 963 F.2d at 427. tors I) (County chose not to change its procurement system).

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78 be made to share some of the burden of the remedy for eradi- reasons for creating a program, and without any sunset or cating racial discrimination.302 expiration provision."310 Likewise, Chicago's program was Race-based programs must have duration limits.303 A race- based on 14-year-old information, which while it supported based remedy must "not last longer than the discriminatory the program adopted in 1990, no longer was sufficient stand- effects it is designed to eliminate."304 "Narrow tailoring also ing alone to justify the city's efforts in 1994.311 How old is too implies some sensitivity to the possibility that a program might old is not definitively answered,312 but state DOTs would be someday have satisfied its purposes."305 One of the factors lead- wise to analyze data at least once every five or six years. ing to the court's holding that the City of Chicago's M/WBE Program was no longer narrowly tailored was the lack of a sun- Burdens of Production and Proof set provision.306 As recently reiterated by the Eleventh Circuit Court of Appeals, the "unlimited duration of the [District's] Unlike most legal challenges, the state DOT in an Adarand racial goals also demonstrates a lack of narrow tailoring. . . . challenge has the initial burden of producing a "strong basis While the District's effort to avoid unintentional discrimination in evidence" in support of its DBE Program. That is, the gov- should certainly be ongoing, its reliance on racial classifications ernment has the burden to put forth evidence of its com- should not."307 In contrast, the U.S.DOT DBE Program's peri- pelling interest in employing race and gender as decision- odic review by Congress has been repeatedly held to provide making factors.313 However, the plaintiff must then proffer adequate durational limits.308 evidence to rebut the government's case, and bears the ulti- This means that affirmative action programs must be reg- mate burden of production and persuasion that the affirma- ularly reviewed to ensure that a strong basis in evidence tive action program is unconstitutional.314 A plaintiff "cannot remains to use the highly suspect tool of race in government meet its burden of proof through conjecture and unsupported decision making. Very old studies will not suffice to support criticism of [the government's] evidence."315 For example, in current programs.309 The City of Augusta, Georgia's program the challenge to the Minnesota and Nebraska DBE Programs, failed to meet strict scrutiny, because "the [M/WBE] Program "plaintiffs316 presented evidence that the data was susceptible is still in place 13 years after the [Disparity] Study was com- to multiple interpretations, but they failed to present affirma- piled without any further investigation into the underlying tive evidence that no remedial action was necessary because minority-owned small businesses enjoy non-discriminatory access to and participation in highway contracts. Thus, they failed to meet their ultimate burden to prove that the DBE 302Concrete Works IV, 321 F.3d at 973; Wygant v. Jackson Board of Education, 476 Program is unconstitutional on this ground."317 U.S. 267, 280281 (1986); Adarand VII, 228 F.3 at 1183 ("While there appears Likewise, in rejecting cross motions for summary judg- to be no serious burden on prime contractors, who are obviously compensated ment, the court in the challenge to the City of Memphis' local for any additional burden occasioned by the employment of DBE subcontrac- tors, at the margin, some non-DBE subcontractors such as Adarand will be M/WBE Program, held that: deprived of business opportunities"); cf. Northern Contracting, Inc. v. Illinois Department of Transportation, 2005 U.S. Dist. LEXIS 19868, *5 (Sept. 8, 2005) Defendant has produced a study which concludes that the City (Northern Contracting II) ("Plaintiff has presented little evidence that it [sic] has discriminated in the award of construction contracts. An enor- suffered anything more than minimal revenue losses due to the program."); mous amount of data was analyzed and organized into the final Western States, 407 F.3d at 995. 303Drabik I, 50 F.Supp.2d at 766 (S.D. Ohio 1999) ("The 1980 MBE Act is unlim- ited in duration. . . . There is no evidence that, at any time during the nearly two decades the Act has been in effect, the General Assembly has ever reconsidered 310 Thompson. v. Augusta, at *9. whether a compelling state interest exists which would justify the continuation 311 BAGC v. Chicago, 298 F.Supp.2d at 739. of a race-based remedy."). 312See, e.g., Drabik I, 50 F.Supp.2d at 745, 750 ("A program of race-based bene- 304515 U.S. at 238. 305Drabik II, 214 F.3d at 737. fits cannot be supported by evidence of discrimination which is now over twenty years old. . . . The state conceded that it had no additional evidence of discrimi- 306BAGC v. Chicago, 298 F.Supp.2d at 739; see also O'Donnell, 963 F.2d at 428 (the nation against minority contractors, and admitted that during the nearly two District "reenacted the law in 1980 and deleted the sunset provision. decades the Act has been in effect, it has made no effort to determine whether Fifteen years have now passed since the District put its minority contracting pro- there is a continuing need for a race-based remedy."); Brunet, 1 F.3d at 409 (14- gram into effect. The District has not suggested that an end is in sight."). Web- year-old evidence of discrimination "too remote to support a compelling gov- ster, 51 F. Supp. 2d at 1382 (telling disqualifier was that the County had been ernmental interest."). implementing a "quota" program since 1979 with no contemplation of program 313See, e.g., Phillips & Jordan, Inc. v. Watts, 13 F.Supp.2d 1308, 1313 (N.D. Fla. 1998). expiration). 314Rothe Development Corporation v. U.S. Department of Defense, 262 F.3d 1306, 307Virdi v. DeKalb County School District, 2005 U.S. App. LEXIS 11203. At *18 1317 (Fed. Cir. 2001) (Rothe V); Adarand VII, 228 F.3d at 1166; see also Scott, 199 11th Cir. June 13, 2005; see also Thompson Building Wrecking Co., Inc. v. City of F.3d at 219, Philadelphia III, 91 F.3d at 597. Augusta, Georgia, 2007 U.S. Dist. LEXIS 27127, 9 (S.D. Ga. 2007). 315Concrete Works IV, 321 F.3d at 989; see also H.B. Rowe, 2008 U.S. Dist. Lexis at 308See Western States, 407 F.3d at 995; H.B. Rowe, 2008 U.S. Dist. Lexis at *27 *27. (state M/WBE program is reviewed every 5 years). 316The plaintiffs in both cases were represented by the same counsel and 309See id. (old evidence was insufficient); Baltimore I, 83 F.Supp.2d at 620 (10- attempted to rely upon the same consultant. year-old evidence to justify 1999 goals is equivalent to no evidence); Drabik I. 317 Sherbrooke, 345 F.3d at 970