Social science and minority "set-asides."

Public Interest, Wntr, 1993 by George R. Lanque

Since no one had any experience at this task, a wide variety of candidates entered the new market. Some national consulting firms, such as KPMG Peat Marwick, won contracts, while others went to organizations formed specifically for this purpose. Some firms approached the task with a semblance of ideological neutrality, while others, such as the Minority Business Enterprise Legal Defense and Education Fund, had a clear-cut position. But regardless of outward appearances, it was obvious that if a company wished to make a regular business of disparity studies, it could not produce conclusions that would invalidate major parts of existing programs. In this area, you were only as good as the political reception given your last study.

While lawyers, accountants, and others worked on the studies, most of the participants and most of the methods were drawn from the social sciences. Generally this work has not drawn social scientists of particular renown, but such notables as Andrew Brimmer, a professor of economics at the University of Massachusetts and the first black member of the Federal Reserve Board, and Ray Marshall, a professor of public policy at the LBJ School and former secretary of labor in the Carter Administration, teamed up to do Atlanta's disparity study.

The studies vary substantially in length and expense. The Atlanta study is 1,034 pages long and cost $532,000, while San Francisco's disparity study is only fifty-five pages long and cost $50,000. The studies are also very diverse methodologically. Overall, however, they have used three approaches--historical, anecdotal, and statistical.

Historical approaches

Understanding discrimination in any field requires an examination of the historical context. But where does one begin, and what evidence is relevant? The 1984 San Francisco M/WBE statute was based on a legislative finding of "historic discrimination against minorities and women, often officially sanctioned and enforced by government from the inception of our Republic to the present." This discrimination was said to be responsible for the "centuries of limited access to the marketplace these groups have suffered." There years later, the Court of Appeals for the Ninth Circuit dismissed these sweeping historical claims and ruled that since the city had not found any of its agencies or officials to have discriminated against anyone, the use of racial preferences, supposedly as remedies, was unconstitutional.

In fact, evidence of overt government discrimination during the past two decades is very rare. But Croson permits raceconscious remedies if a city is even a passive participant in discrimination in the construction industry. Justice O'Connor stated that if a system of racial exclusion was maintained by members of the local construction industry, "we think it clear the city could take affirmative action to dismantle such a system." Evidence of such discrimination, however, has been hard to find. While it surely occurs from time to time, white primary contractors who refuse low bids from qualified MBE subcontractors soon discover that their competitors are able to underbid them. Practicing such bias is very expensive in the rough and tumble world of construction. Some disparity studies, however, have attempted to make a case for contracting preferences because of discrimination in other areas, such as housing, education, and voting. That kind of discrimination was manifest in Richmond, but the Supreme Court declared in Croson that past societal discrimination could not justify the use of racial classifications in public contracting.