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Deficiencies in Anecdotal Evidence Threaten the Survival of Race-Based Preference Programs for Public Contracting Jeffrey M

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Deficiencies in Anecdotal Evidence Threaten the Survival of Race-Based Preference Programs for Public Contracting Jeffrey M Cornell Law Review Volume 88 Article 6 Issue 5 July 2003 Hanging by Yarns: Deficiencies in Anecdotal Evidence Threaten the Survival of Race-Based Preference Programs for Public Contracting Jeffrey M. Hanson Follow this and additional works at: http://scholarship.law.cornell.edu/clr Part of the Law Commons Recommended Citation Jeffrey M. Hanson, Hanging by Yarns: Deficiencies in Anecdotal Evidence Threaten the Survival of Race-Based Preference Programs for Public Contracting, 88 Cornell L. Rev. 1433 (2003) Available at: http://scholarship.law.cornell.edu/clr/vol88/iss5/6 This Note is brought to you for free and open access by the Journals at Scholarship@Cornell Law: A Digital Repository. It has been accepted for inclusion in Cornell Law Review by an authorized administrator of Scholarship@Cornell Law: A Digital Repository. For more information, please contact [email protected]. NOTE HANGING BY YARNS?: DEFICIENCIES IN ANECDOTAL EVIDENCE THREATEN THE SURVIVAL OF RACE-BASED PREFERENCE PROGRAMS FOR PUBLIC CONTRACTINGt Jeffrey M. Hansontt INTRODUCTION .................................................. 1434 I. CONSTITUTIONALITY OF RAcE-BASED PREFERENCES FOR PUBLIC CONTRACTS ...................................... 1438 A. Strict Scrutiny for "Benign" Race-Based Preferences. 1438 1. Compelling Interest ............................... 1438 2. Narrow Tailoring................................. 1439 3. Strong Basis in Evidence .......................... 1440 B. Adarand: Strict Scrutiny for Federal Preferences ..... 1443 II. GOVERNMENTS RESPOND TO CROSON: DEFENDING PREFERENCE PROGRAMS .................................. 1444 A. Disparity Studies: Finding Statistical Evidence of Discrim ination ...................................... 1444 B. Criticisms of Disparity Studies ...................... 1445 III. THE ROLE OF ANECDOTAl. EVIDENCE ..................... 1447 A. Essential, Corroborating Evidence .................. 1448 B. Typical Sources and Content of Anecdotal Evidence ........................................... 1451 IV. JUDICIAL TREATMENT OF ANECDOTAL EVIDENCE USED TO SUPPORT MBE PROGRAMS ............................... 1454 A. Associated General Contractors of California, Inc. v. Coalitionfor Economic Equity ......................... 1455 B. Engineering ContractorsAss'n of South Florida v. Metropolitan Dade County ............................ 1457 t The title reflects this Note's conclusion that many jurisdictions' minority-based public-contracting preference programs are vulnerable to equal protection challenges because policy makers have not sufficiently scrutinized the anecdotal evidence of discrimination used to support those programs. By not scrutinizing the anecdotal evidence, policy makers have failed to identify which accounts of discrimination may, in fact, have nondiscriminatory explanations. The failure to purge anecdotal evidence of those accounts that improperly perceive discrimination (i.e., the "yarns" referred to in the title) undermines the value of narrations of actual discrimination. The title seeks to convey both the uncertainty surrounding the evidence and the vulnerability of the preference programs. tt B.A., Linfield College, 1992; M.A., Claremont Graduate University, 1996; J.D., Cornell Law School, 2003. 1433 1434 CORNELL LAW REVIEW [Vol. 88:1433 C. Associated General Contractors of America v. City of Columbus ............................................ 1460 V. DEFENDING AN MBE PROGRAM WITH ANECDOTAL EVIDENCE OF DISCRIMINATION ............................ 1463 A. Methodological Steps to Improve the Likelihood that Anecdotal Evidence Will Survive Judicial Scrutiny ............................................ 1465 1. Anecdotal Evidence Should Be Collected from MBE and Non-MBE Contractors ........................ 1465 2. In the Collection of Anecdotal Evidence, Attempts Should Be Made to Guard Against "Response Bias" and "InterviewerBias" ..... ...................... 1466 3. Collected Anecdotes of DiscriminationShould Be Appropriate in Time and Place .................... 1466 4. Collected Anecdotes of DiscriminationShould Relate Specifically to Discriminationin Public Contracting.. 1467 5. Collected Anecdotes of DiscriminationShould Be Industry Specific .................................. 1467 6. Collected Anecdotes of DiscriminationShould Be Group Specific .................................... 1468 7. Collected Anecdotes of DiscriminationShould Contain Adequate Details of Specific Instances of Discrimination ................................... 1468 8. Attempts Should Be Made to CorroborateAnecdotes of Discrimination ................................... 1468 9. Anonymous Reponses Should Be Discouraged........ 1469 B. Post-Enactment Evidence ........................... 1470 CONCLUSION ..................................................... 1470 The White project managersfor the State feel comfortable in hiring White companies to work for them. That's the only criteri[on]. And they're using experience[,] ... which will give them comfort, to replace the discomfort they feel because you're a minority.' INTRODUCTION The above excerpt is a typical example of the anecdotal evidence of discrimination that dozens of state and local governments have col- lected since the U.S. Supreme Court's 1989 decision in City of Rich- mond v. J.A. Croson Co.2 When the Croson Court struck down 1 3 Mason Tillman Assocs., Ltd., State of Washington Disparity Study: An Historical Overview Disparity Study 2-106 (April 1998) (unpublished draft) (on file with author) (quoting an anonymous African-American male contractor (omission in original)). 2 488 U.S. 469 (1989); see George R. La Noue, Standardsfor the Second Generation of Croson-Inspired Disparity Studies, 26 URB. LAw. 485, 521-28 (1994). 2003] DEFICIENCIES IN ANECDOTAL EVIDENCE 1435 Richmond's public-contracting preference program for minority busi- ness enterprises (MBEs), 3 it did so, in part, because the city did not have statistical or anecdotal evidence of discrimination sufficient to withstand constitutional scrutiny under the Equal Protection Clause. 4 Although some state and local governments responded to Croson by eliminating preference programs, 5 many jurisdictions responded by commissioning disparity studies to gather statistical and anecdotal evi- 7 dence of discrimination against minority and women 6 contractors. It is hardly surprising that many state and local policy makers sought to preserve MBE preference programs despite Croson. After all, the issue of racial preferences includes many highly devoted pro- ponents,8 and the language of Croson offered an opening for jurisdic- tions to defend their MBE programs by collecting adequate evidence 9 of discrimination. Of course, since Croson, race-based preferences have remained a controversial and high-profile public policy issue. In 1996, for exam- ple, "sharply divided" California voters approved Proposition 209, which ended government-sponsored race- and gender-based prefer- ence programs in the state. I" The wide-ranging constitutional amend- ment applies to public employment, public education, and public contracting." Two years later, voters in Washington state approved the nearly identical Initiative 200.12 Moreover, among the most- '3 Throughout this Note, MBE refers to minority business enterprise, WBE to women business enterprise, and MWBE to either minority or women business enterprise (i.e., MWBE is not restricted to businesses owned by minority women). 4 See discussion infra Part I.A. 5 See Walter H. Ryland, A Survey and Analysis ofPost-Croson Case Law, in NAT'L LEGAL CTR. FOR THE PUB. INTEREST, RACIAL PREFERENCES IN GOVERNMENT CONTRACTING 1, 42 & n.172 (Roger Clegg ed., 1993) (citing eight opinions by various state attorneys general). 6 Although there is some reference throughout this Note to gender-based prefer- ences, the Note focuses on race-based preferences because the constitutional standards are stricter and more fully developed. Gender-based preferences are subject to intermediate scrutiny-or, after United States v. Virginia, at least subject to a less rigorous standard than strict scrutiny. See 518 U.S. 515, 531 (1996) (requiring the state to provide an "exceedingly persuasive justification" for single-sex education at the Virginia Military Institute (quoting J.E.B.v. Alabama ex rel. T.B., 511 U.S. 127, 136 (1994))). But see Eng'g Contractors Ass'n of S. Fla., Inc. v. Metro. Dade County, 122 F.3d 895, 907-08 (11th Cir. 1997) (concluding that intermediate scrutiny remains the standard for gender-based preferences, even after United States v. Virginia). 7 See discussion infra Part II.A. 8 See, e.g., Elizabeth S. Anderson, Integration, Affirmative Action, and Strict Scrutiny, 77 N.Y.U. L. REv. 1195 (2002); Ian Ayres & Fredrick E. Vars, Wen Does Private Discrimination Justify Public Affirmative Action?, 98 COLUM. L. REV. 1577 (1998). 9 See discussion infra Part I.A.3. 10 Bill Stall & Dan Morain, Prop. 209 Wins, Bars Affirmative Action, L.A. TIMES, Nov. 6, 1996, at Al. I 1 CAL. CONST. art. I, § 31. 12 Heath Foster, Affirmative Action Rules Tossed Out by State Voters, SEArrLE POST-INTELLI- GENCER, Nov. 4, 1998, at Al. 1436 CORNELL LAW REVIEW [Vol. 88:1433 watched cases of the Supreme Court's 2002 term are two University of Michigan cases dealing with race-based preferences in undergradu- ate' 3 and law school 14 admissions. Given the issue's complex policy and political implications, the Bush Administration's decision to sub- mit carefully crafted amicus briefs opposing the University's programs was much anticipated
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