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8 Recipients may consider the kinds of evidence that are used in tomize their DBE goals to withstand strict scrutiny. It is not `Step 2' of the Part 26 goal-setting process, such as evidence of enough to plug the Step 1 availability estimate into a formula barriers in obtaining bonding and financing, and disparities without considering the effects of discrimination. Western in business formation and earnings. With respect to statistical evidence, the study should rigor- States also casts doubt on the value of using the state DOT's ously determine the effects of factors other than discrimina- past levels of DBE utilization as a measure of the availability of tion that may account for statistical disparities between DBE DBEs "but for" discrimination because of the interposition of availability and participation. This is likely to require a mul- the DBE program. Any adjustment must be a quantifiable rep- tivariate/regression analysis. resentation of the qualitative judgment that the ongoing effects The study should quantify the magnitude of any differences of past or current discrimination either do or do not continue between DBE availability and participation, or DBE participa- tion in race-neutral and race-conscious contracts. Recipients to impede DBEs' full and fair access to the recipient's market. should exercise caution in drawing conclusions about the Western States further implies, and the U.S.DOT guidance presence of discrimination and its effects based on small dif- provides, that when a Ninth Circuit recipient determines ferences. that not all the enumerated groups have suffered discrimina- In calculating availability of DBEs, the study should not rely tion in its market, it must petition U.S.DOT for a waiver of on numbers that may have been inflated by race-conscious the prohibition against separate goals for racial and ethnic programs or that may not have been narrowly tailored. Recipients should consider, as they plan their studies, evidence- minorities and white women. If a group is not found to suf- gathering efforts that Federal courts have approved in the fer discrimination in the state DOT's marketplace, then cer- past. These include the studies by Minnesota and Nebraska tified DBEs owned by such persons cannot be counted by a cited in Sherbrooke Turf . . . [and] the Illinois evidence cited prime contractor toward meeting a DBE contract goal. For in Northern Contracting. example, in response to their disparity studies' findings of in- sufficient evidence of discrimination, a waiver to remove DBE Program Implementation and Goal Setting Hispanic and Subcontinent Asian males from goal credit has in the Ninth Circuit been granted to the California Department of Transporta- tion's (Caltrans'), and the Oregon Department of Trans- While the Guidance provided the contours of the types of portation's (ODOT's) request to exclude white females and evidence to be analyzed, precisely what evidence a defensible Hispanics is pending. study should include in the Ninth Circuit is not established. If WSDOT had presented a Sherbrooke/Northern Contracting- type availability study and proffered expert testimony in sup- TRB Model Disparity Study Project port of its analysis, then the court may have approved the This TRB project was undertaken to assist grantees in meet- program. Whether additional evidence of discrimination of ing these guidelines, as well as the mandates of strict scrutiny the type presented at the Northern Contracting trial should and Part 26. In particular, we were retained to do the following: also be included is uncertain because while the Western States court suggests disparity evidence is required, it also relied Provide guidelines to state DOTs to determine when studies upon Sherbrooke where such evidence was not presented. The are needed; Seventh Circuit explained the Ninth Circuit's misreading of Develop a model scope of work for Requests for Proposals a previous Seventh Circuit case upon which the Ninth Circuit (RFPs) for studies; heavily relied, but the IDOT trial presented evidence of the Develop a model disparity/availability study design; and type referred to by the Ninth Circuit, so it is again impossi- Determine what data should be collected. ble to know the outcome had Illinois relied solely upon its availability study. What follows is our best professional judgment on how What is certain is that at a minimum, Ninth Circuit grantees, best to respond to the evidentiary issues involved for state and perhaps all U.S.DOT aid recipients, must significantly cus- DOTs in meeting strict scrutiny and regulatory mandates.