In United States law, City of Richmond v. J.A. Croson Co. (1989) established the basic principle that a governmental actor must provide a strong basis in evidence for its conclusion that remedial action is necessary.

The application of this rule has produced conflicting results.[1] Unfortunately, Croson did not offer guidance as to what amount and type of factual showing would provide a strong basis in evidence that discrimination existed in a particular industry.[2]

Justifying affirmative action by a government entity

In order to uphold an affirmative action program under strict scrutiny, there must exist a "strong basis in evidence" of past discrimination by the specific entity to support the conclusion that remedial action is necessary.[3] A generalized assertion that there has been past discrimination in an entire industry will not be enough to justify a program under strict scrutiny.[4] The government must have actively discriminated in its award of contracts or employment or have been a passive participant in a system of racial exclusion practiced by elements of a local industry.

The most probative type of evidence seems to be statistical data showing "gross statistical disparities between the proportion of minorities hired... and the proportion of minorities willing and able to do the work."[5] In government contracting cases, this is often shown through the use of a disparity index, which is a comparison between the share of contracts awarded to minority contractors and the percentage of qualified minority-owned firms in the local population that do such work.[6] In addition, while the combination of "convincing anecdotal and statistical evidence is potent,"[7] anecdotal evidence, by itself, will rarely suffice to justify an affirmative action program evaluated under strict scrutiny.[8]

References

  1. ↑ See Patricia L. Donze, Comment, The Supreme Court's Denial of Certiorari in Dallas Firefighters Leaves Unsettled the Standard for Compelling Remedial Interests, 50 Case W. Res. L. Rev. 759, 779 (2000) (finding that some circuits require clear proof of the casual connection between past discrimination and present effects to satisfy the strong basis in evidence requirement, whereas other circuits let an inference suffice).
  2. ↑ See Derek M. Alphran, Articles, Proving Discrimination After Croson and Adarand: "If it Walks Like a Duck", 37 U.S.F. L. Rev. 887, 892-93 (2003) at 902 (noting that Croson did not produce a clear framework for courts to follow in deciding "whether a governmental actor has made a sufficient showing regarding the discriminatory effects alleged to exist or have existed in the public or private workplace in question").
  3. ↑ See City of Richmond v. J.A. Croson Co., 488 U.S. 469, 500 (1989).
  4. ↑ See id. at 498.
  5. ↑ Engineering Contractors Ass'n v. Metropolitan Dade County, 122 F.3d 895, 907 (11th Cir. 1997), cert. denied, 118 S. Ct. 1186 (1998) (quoting Ensley Branch, NAACP v. Seibels, 31 F.3d 1548, 1565 (11th Cir. 1994)); see also Contractors Ass'n v. City of Phila., 6 F.3d 990, 1004 (3d Cir. 1993).
  6. ↑ See Contractors Ass'n, supra, 1005.
  7. ↑ Id. at 1003 (quoting Coral Constr. Co. v. King County, 941 F.2d 910, 919 (9th Cir. 1991)).
  8. ↑ For example, while the Third Circuit allows that "anecdotal evidence alone may, in an exceptional case, be so dominant or pervasive that it passes muster under Croson," Contractors Ass'n, supra, at 1003, the Ninth Circuit indicates that "anecdotal evidence... rarely, if ever, can... show a systemic pattern of discrimination necessary for the adoption of an affirmative action plan," Coral Constr., 941 F.2d at 919, and the Eleventh Circuit says that "only in the rare case will anecdotal evidence suffice standing alone." Engineering Contractors, 122 F.3d at 925. See also Concrete Works, Inc. v. City & County of Denver, 36 F.3d 1513, 1521 (10th Cir. 1994) ("We deem anecdotal evidence...appropriate supplementary evidence in our strict scrutiny calculus.") (emphasis added). These statements also seem consistent with O'Connor's plurality in Croson, which noted that "evidence of a pattern of individual discriminatory acts can, if supported by appropriate statistical proof, lend support to a local government's determination that broader remedial relief is justified." Croson, supra, at 509 (emphasis added).

Further reading

  • Comment: Appellate Review Of A "Strong Basis In Evidence" In Public Contracting Cases. 77 U. Colo. L. Rev. 193
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