United States law The law of the United States comprises many levels of Codification (law), codified and uncodified forms of law, of which the supreme law is the nation's Constitution of the United States, Constitution, which prescribes the foundation of the ...

, '' City of Richmond v. J.A. Croson Co.'' (1989) established the basic principle that a

government A government is the system or group of people governing an organized community, generally a State (polity), state. In the case of its broad associative definition, government normally consists of legislature, executive (government), execu ...

al 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. Unfortunately, ''Croson'' did not offer guidance as to what amount and type of factual showing would provide a strong basis in evidence that

discrimination Discrimination is the process of making unfair or prejudicial distinctions between people based on the groups, classes, or other categories to which they belong or are perceived to belong, such as race, gender, age, class, religion, or sex ...

existed in a particular industry.

Justifying affirmative action by a government entity

In order to uphold an

affirmative action Affirmative action (also sometimes called reservations, alternative access, positive discrimination or positive action in various countries' laws and policies) refers to a set of policies and practices within a government or organization seeking ...

program under

strict scrutiny In U.S. constitutional law, when a law infringes upon a fundamental constitutional right, the court may apply the strict scrutiny standard. Strict scrutiny holds the challenged law as presumptively invalid unless the government can demonstrat ...

, there must exist a "strong basis in evidence" of past discrimination by the specific entity to support the conclusion that remedial action is necessary. A generalized assertion that there has been past discrimination in an entire industry will not be enough to justify a program under strict scrutiny. The government must have actively discriminated in its award of

contract A contract is an agreement that specifies certain legally enforceable rights and obligations pertaining to two or more parties. A contract typically involves consent to transfer of goods, services, money, or promise to transfer any of thos ...

s or

employment Employment is a relationship between two party (law), parties Regulation, regulating the provision of paid Labour (human activity), labour services. Usually based on a employment contract, contract, one party, the employer, which might be a cor ...

or have been a passive participant in a system of racial exclusion practiced by elements of a local industry. The most

probative Relevance, in the common law of evidence, is the tendency of a given item of evidence to prove or disprove one of the legal elements of the case, or to have probative value to make one of the elements of the case likelier or not. Probative is a te ...

type of

evidence Evidence for a proposition is what supports the proposition. It is usually understood as an indication that the proposition is truth, true. The exact definition and role of evidence vary across different fields. In epistemology, evidence is what J ...

seems to be statistical data showing "gross

statistical Statistics (from German language, German: ', "description of a State (polity), state, a country") is the discipline that concerns the collection, organization, analysis, interpretation, and presentation of data. In applying statistics to a s ...

disparities between the proportion of

minorities The term "minority group" has different meanings, depending on the context. According to common usage, it can be defined simply as a group in society with the least number of individuals, or less than half of a population. Usually a minority g ...

hired... and the proportion of minorities willing and able to do the work." In

government contract Government procurement or public procurement is the purchase of goods, works (construction) or services by the state, such as by a government agency or a state-owned enterprise. In 2019, public procurement accounted for approximately 12% of Gross ...

ing 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. In addition, while the combination of "convincing anecdotal and statistical evidence is potent,"

anecdotal evidence Anecdotal evidence (or anecdata) is evidence based on descriptions and reports of individual, personal experiences, or observations, collected in a non- systematic manner. The term ''anecdotal'' encompasses a variety of forms of evidence. This ...

, by itself, will rarely suffice to justify an affirmative action program evaluated under strict scrutiny.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).

References

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Justifying affirmative action by a government entity

References

Further reading