United States law The law of the United States comprises many levels of codified and uncodified forms of law, of which the most important is the nation's Constitution, which prescribes the foundation of the federal government of the United States, as well a ...

, ''

City of Richmond v. J.A. Croson Co. ''City of Richmond v. J.A. Croson Co.'', 488 U.S. 469 (1989), was a case in which the United States Supreme Court held that the minority set-aside program of Richmond, Virginia, which gave preference to minority business enterprises (MBE) in the ...

'' (1989) established the basic principle that a

government A government is the system or group of people governing an organized community, generally a state. In the case of its broad associative definition, government normally consists of legislature, executive, and judiciary. Government is ...

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 existed in a particular industry.

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. 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 a legally enforceable agreement between two or more parties that creates, defines, and governs mutual rights and obligations between them. A contract typically involves the transfer of goods, services, money, or a promise to tr ...

s or employment 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 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." In

government contract Government procurement or public procurement is the procurement of goods, services and works on behalf of a public authority, such as a government agency. Amounting to 12 percent of global GDP in 2018, government procurement accounts for a subst ...

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 Minority business enterprise (MBE) is an American designation for businesses which are at least 51% owned, operated and controlled on a daily basis by one or more (in combination) American citizens of the following ethnic minority and/or gender (e ...

firms in the local population that do such work. In addition, while the combination of "convincing anecdotal and statistical evidence is potent," anecdotal evidence, 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 The United States Court of Appeals for the Ninth Circuit (in case citations, 9th Cir.) is the U.S. federal court of appeals that has appellate jurisdiction over the U.S. district courts in the following federal judicial districts: * District ...

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