Disregarding intent: using statistical evidence to provide greater protection of the laws.

AuthorGoodman, Christine Chambers
PositionPublic contracting discrimination cases, California
  1. INTRODUCTION

    The year is 2015. The Governor of California has recently announced the startling statistic that fifty percent of the state government construction contracts awarded this year went to minority-owned businesses. This percentage is extremely high given that minority-owned businesses averaged roughly fifteen percent of such contracts in 1995--the year preceding the abolition of minority preferences in California.

    The owner of a construction firm suspects that the reason for this increase--twenty years later--is that preferences are being granted to minority contractors within the state, in violation of Section 31 of the California Constitution (Section 31). (1) The one available statistic--depicting the substantial disparity between the number of state contracts awarded to minority-owned businesses in 1995 and the amount awarded in 2015--might suggest that there is a problem.

    The difficulty in determining whether there is preferential treatment arises when there is a lack of available information concerning the number of minority contractors present in the state, the number of minority contractors who submitted bids to the state, and the number of minority contractors who submitted the lowest bids on state jobs. Most state government agencies have stopped gathering these numbers altogether.

    In reality, recent cases suggest that California is progressing towards a fundamental change in the nature of its anti-discrimination law, which will increase the efficacy of reliance upon statistical evidence in future litigation. (2) The change is that California courts may soon permit consideration of disparate-impact evidence in proving violations of anti-preference and anti-discrimination provisions (3) of Section 31, which was added in 1996 and which was based on the voter's approval of Proposition 209. (4)

    While this may seem like a substantial departure from existing anti-discrimination law, California has been heading in this direction for the past two years. In Hi-Voltage Wire Works, Inc. v. City of San Jose, decided in 2000, the California Supreme Court abruptly changed the way that California courts can apply anti-discrimination law by adopting a standard that made it virtually impossible to justify a race-conscious outreach program. (5) This decision laid a foundation for the next step--making preferences and discrimination actionable despite the inability to prove intent. Thus, in the few short years since the passage of Proposition 209, California has accomplished something that the United States Supreme Court has been moving towards for two decades--the California Supreme Court has obliterated the distinction between invidious and benign discriminations.

    While the California Supreme Court was unwilling to address whether the prohibitions of Section 31 are limited to intentional conduct, as in Hi-Voltage, (6) its rationale indicated that the next logical step would, in fact, be to resolve this issue. If, indeed, the voters who approved Proposition 209 wanted greater protection against discrimination and preferences, then it is appropriate for the courts to provide greater protection against harm by making redress available whenever harm is proven, regardless of the intent of the actor. Thus, in order to provide greater protection against the harm of discrimination means to interpret Section 31 to prohibit discriminatory acts, even when intent is lacking. (7) The California courts have already addressed the issue of de facto preferences in favor of minority groups, (8) but there is no evidence of reciprocal concern to eliminate the unintentional preferences that favor the majority.

    If unintentional discrimination constitutes a violation of Section 31, then a disparate impact analysis--borrowing contextually from Title VII of the federal Civil Rights Act of 1964 (9) and relying heavily on statistics--would be sufficient to establish the existence of improper preferences or discrimination. By using a disparate-impact analysis, the harmful effect of discriminatory acts will be revealed. Title VII litigation would be an appropriate model for public contracting litigation because it involves numerous individual decisions that could result in a finding of discrimination absent probative evidence of discriminatory intent. The importance of statistics in disparate impact cases is readily accepted. As a result, these statistics could easily become the requisite evidence for proving discrimination claims.

    Regardless of the court's decision on the issue of intent, statistics are also important because the courts rely heavily--and almost exclusively--on such evidence to establish violations of anti-discrimination laws. (10) As explained in Part IV of this article, statistics are the most powerful circumstantial evidence of intent to discriminate, even where intent is an essential element of the claim. Thus, in either case, statistical evidence will continue to be crucial for proving discrimination, as well as for establishing preference claims.

    Notwithstanding its recognition of the voter mandate for greater protection, the California Supreme Court's denial of review of Barlow v. Davis (11) has operated to undermine the citizens' ability to identify and redress instances of improper discrimination and preferences. There is a critical split in California's Court of Appeal opinions on the issue of whether keeping statistical records on minority participation in public contracting is permissible or even constitutional, under the California Constitution, as amended by Section 31. In its 1999 Barlow decision, the First District of the California Court of Appeal, in effect, determined that since the California Constitution no longer permitted preferential treatment for minority contractors in public contracting, there would be no justification for continuing to collect statistics on the state government's utilization of minority contractors in state public contracting jobs. (12) In 2001, the Third District of the California Court of Appeal departed from this reasoning in Connerly v. State Personnel Board. (13) In that case, the court determined that the government has a compelling need for statistical records--sufficient to justify the requirement that statistical records be gathered and maintained. (14) The conflict between these two decisions leaves an impressive gap in California's equal protection doctrine.

    Although the California Supreme Court has refused to decide whether gathering statistical data on minority participation in public contracting is permissible, it is important to address the role that such statistical data plays in a discrimination case. Part II of this article describes and analyzes the California Supreme Court's interpretation of the scope of Section 31 in its Hi-Voltage decision and presents the argument that proof of intent may not be required to establish a violation of Section 31. Part III of this article goes on to describe the background of the conflicting California Court of Appeal decisions--Barlow and Connerly--on the issue of statistical recordkeeping for public contracting jobs. Part IV explains how statistics actually help litigants prove intent in public contracting discrimination cases, and identifies some of the flaws and inadequacies in many statistical reports. Finally, Part V concludes the article.

  2. THE EFFECTS OF APPLYING HI-VOLTAGE'S ANTI-PREFERENCE STANDARD

    1. Anti-Discrimination Law, Federal Anti-Discrimination, and Preference Law in a Nutshell

      Before Hi-Voltage can be adequately understood, one must understand the context in which it was decided. The federal government has long supported affirmative action in federal procurement programs, (15) and these affirmative action programs have been continually expanded and reauthorized. (16) The United States Supreme Court has given deference to race-conscious federal programs--provided that the motivation for their implementation was benign. For example, affirmative action programs and minority participation goals, implemented to help under-represented minorities in a particular area, have gained Supreme Court approval. (17) City of Richmond v. J.A. Croson Co. then eliminated the division between benign and invidious racial classifications and determined that the amount of deference afforded to state and local programs would be dependent upon the history of discrimination in a particular state. (18) Then, in Adarand Constructors, Inc. v. Pena, the Court determined that even federal programs enacted for a benign purpose would be subject to strict scrutiny, based on the principles of "skepticism," "consistency," and "congruence." (19) While a substantial debate remains about the role that the motivation for governmental acts should play in determining whether a preference is permissible or unconstitutional, in Adarand Constructors Inc., the United States Supreme Court settled the issue for the foreseeable future. (20)

      A strict scrutiny analysis is now required whenever a race-based classification is enacted by any governmental agency or entity, regardless of whether the classification results in a benefit or a burden to a class of people based on race or ethnicity. (21) The strict scrutiny test has a two-prong analysis. The first prong requires the court to determine whether there is a compelling governmental interest sufficient to justify the race-based classification. (22) Thus far, the remedying of past racial discrimination has been the only reason compelling enough to satisfy this stringent prong. (23) The evidence produced to support this justification, however, often fails to establish sufficient proof of past discrimination. (24)

      The second prong of the strict scrutiny test requires a determination that the means used be narrowly tailored to accomplish the compelling governmental interest. (25) Even when the courts have found adequate proof of a compelling interest to satisfy the first prong, the courts...

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