Disparity Studies
A necessary predicate for action
The request
(excerpt)
The request
(excerpt continued)
City of Richmond, Appellant
v. J.A. Croson Company 1989
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If the city of Richmond had evidence before it that
nonminority contractors were systematically excluding
minority businesses from subcontracting opportunities
it could take action to end the discriminatory exclusion.
Where there is a significant statistical disparity
between the number of qualified minority contractors
willing and able to perform a particular service and the
number of such contractors actually engaged by the
locality or the locality's prime contractors, an inference
of discriminatory exclusion could arise.
Adarand Constructors, Inc.
v. Pena 1995
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It follows from that principle that all governmental
action based on race--a group classification long
recognized as "in most circumstances irrelevant and
therefore prohibited," Hirabayashi, 320 U.S. at 100,
should be subjected to detailed judicial inquiry to
ensure that the personal right to equal protection of
the laws has not been infringed. These ideas have
long been central to this Court's understanding of
equal protection, and holding "benign" state and
federal racial classifications to different standards
does not square with them. "
Adarand Constructors, Inc.
V. Pena
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Accordingly, we hold today that all racial
classifications, imposed by whatever federal,
state, or local governmental actor, must be
analyzed by a reviewing court under strict
scrutiny. In other words, such classifications
are constitutional only if they are narrowly
tailored measures that further compelling
governmental interests.
Croson Result in the 11th Circuit
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In this circuit, we have identified four factors that
should be taken into account when evaluating
whether a race- or ethnicity-conscious
affirmative action program is narrowly tailored:
 In making this evaluation, we consider: (1) the
necessity for the relief and the efficacy of
alternative remedies; (2) the flexibility and
duration of the relief, including the availability of
waiver provisions; (3) the relationship of
numerical goals to the relevant labor market;
and (4) the impact of the relief on the rights of
innocent third parties. ENGINEERING CONTRACTORS
ASSOCIATION OF SOUTH FLORIDA INC (1997)
Compelling Governmental interest
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Strict scrutiny for race based programs
 Statistical evidence must be based upon
proper methods and data
 Must account for other factors that impact
utilization
 Anecdotal evidence of little value
Florida A.G.C. Council, Inc.
v. Florida 2004
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The Court followed Croson precedent and held that
“where there is a significant disparity between the
number of minority contractors willing and able to
perform a particular service and the number of such
contractors actually engaged by the locality or the
locality’s prime contractors, an inference of
discriminatory exclusion could arise.” Florida A.G.C.
at 315 quoting Croson, 488 U.S. at 509. But the Court
did not find the legislatures spending goals to fall into
that constitutional exception because there was no
proof of a disparity. Therefore following Croson, the
court held the minority program unconstitutional
because it was not narrowly tailored to serve a
compelling government purpose, and it therefore
violated the Equal Protection Clause of the Fourteenth
Amendment. Florida A.G.C. at 316.
Virdi
v. DeKalb County School District 2005
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The court held the MVP unconstitutional
because it was not narrowly tailored: there
was no evidence that the District considered
race-neutral alternative means of tracking its
activities to avoid unwitting discrimination, and
the MVP’s racial goals were of unlimited
duration.
Hershell Gill Consulting Engineers, Inc.,
v. Miami-Dade County 2005
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Non-minority engineering firms brought an action
against Miami-Dade County challenging the
constitutionality of their minority and women business
enterprise program (MWBE) which established
participation goals for minority and women business
enterprises in awarding county architectural and
engineering contracts. The Court found the program
unconstitutional because it was not narrowly tailored to
pass strict scrutiny. The court found the statistical
survey results were unreliable, inaccurate, and
unpersuasive, and therefore did not constitute a
“strong basis” in evidence to pass strict scrutiny.
Requirements to act
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Statistical evidence of discrimination must show that either the
government’s own actions resulted in a significant disparity in
purchasing, or that the government was a passive participant in
discriminatory practices of private industry.
The disparity study must control for race and ethnic neutral
factors such as company size, financial capacity, etc. that would
account for the statistical disparities.
The statistics used must be deemed reliable – superficial
analysis will not suffice.
The government must seriously undertake race and ethnic
neutral efforts in an attempt to rectify any desperate treatment.
Any race or ethnic specific goals must be substantially related
to the relevant market.
If adopted, any such purchasing program must be implemented
in a flexible manner.
The program must have a finite duration.