Social science and minority "set-asides."

Public Interest, Wntr, 1993 by George R. Lanque

Nevertheless, the city, which had an earlier MBE program declared unconstitutional by the Ninth Circuit, solemnly decided that any statistically significant underutilization could be caused only by discrimination. To remedy the "discrimination" where underutilization had occurred, local M/WBEs in those categories were given 10 percent bidding preferences on all city contracts. To make that effective the city also raised the threshold of its charter's low-bid requirement from $50,000 to $10,000,000, meaning that most contracts no longer had to go to the low bidder. These moves tripled the amount of city contracts awarded to M/WBEs in two years, and the new "narrowly tailored" program was able to fend off a preliminary injunction challenge. The M/WBE coalition was unhappy, however, since some of its member groups were left out--the disparity study did not show them as underutilized. Consequently, the city added amendment after amendment to bring the excluded groups into the program. Indeed, at the insistence of the assistant city attorney who had earlier defended the trimmed-back M/WBE program in court, the city created a new 80 percent goal for legal services, to be divided equally among Asians, Latinos, blacks, and women. That goal, of course, has no relationship to any statistical availability of law firms in San Francisco or anywhere else.

Finally, when a disparity study is done well and includes appropriate data, it may simply be ignored. The Louisiana state study, prepared by a white economist and black political scientist, concluded that when capacity was taken into account, the state did not discriminate against MBEs. Although that might suggest there were not sufficient grounds for a race-conscious program, then-Governor Buddy Roemer reached the opposite conclusion and decided that the study proved the state's MBE program must be preserved.

The disparity-study shield

Whatever their flaws as social science, the disparity studies have proved a potent weapon in keeping alive racial classifications in public contracting. White contractors and the various branches of the Associated General Contractors have had a difficult time getting the lower courts to enforce Croson. Although one of the legacies of the civil-rights movement has been the use of class-action suits, which broadened concepts of standing to sue, contractors have discovered novel barriers to pursuing their class-action claims. The Fourth Circuit ruled that a contractors association that included MBEs lacked standing because it could not represent all of its members in an attack on racial contracting preferences. The Eleventh Circuit has limited standing to low-bid contractors denied a contract because of an MBE program. Even when a jurisdiction used set-asides that prevented all non-MBEs from bidding, standing was rejected. (That case, however, will be reviewed by the Supreme Court this term.) The Eleventh Circuit also decided that the additional costs non-MBEs incurred because of MBE program requirements were an economic injury common to all non-MBE contractors and therefore could not be challenged. Other circuits have used more traditional concepts of standing. Until the Supreme Court resolves these questions, Croson cannot be effectively enforced in large parts of the country.