Strong-basis-in-evidence standard

Last updated November 01, 2019

In United States law, City of Richmond v. J.A. Croson Co. (1989) established the basic principle that a governmental actor must provide a strong basis in evidence for its conclusion that remedial action is necessary.

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 awarding of municipal contracts, was unconstitutional under the Equal Protection Clause. The Court found that the city failed to identify both the need for remedial action and that other non-discriminatory remedies would be insufficient.

A government is the system or group of people governing an organized community, often a state.

A remedial action is a change made to a nonconforming product or service to address the deficiency. This also can refer to restoration of a landscape from industrial activity

In human social behavior, discrimination is prejudiced treatment or consideration of, or making a distinction towards, a person based on the group, class, or category to which the person is perceived to belong. These include age, caste, colour, criminal record, height, disability, ethnicity, family status, gender identity, generation, genetic characteristics, marital status, nationality, race, religion, sex, sexual orientation, and social class. Discrimination consists of treatment of an individual or group, based on their actual or perceived membership in a certain group or social category, "in a way that is worse than the way people are usually treated". It involves the group's initial reaction or interaction going on to influence the individual's actual behavior towards the group leader or the group, restricting members of one group from opportunities or privileges that are available to another group, leading to the exclusion of the individual or entities based on illogical or irrational decision making.

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.^[3] A generalized assertion that there has been past discrimination in an entire industry will not be enough to justify a program under strict scrutiny.^[4] The government must have actively discriminated in its award of contracts or employment or have been a passive participant in a system of racial exclusion practiced by elements of a local industry.

Affirmative action describes policies that support members of a disadvantaged group that has previously suffered discrimination in such areas as education, employment, or housing. Historically and internationally, support for affirmative action has sought to achieve goals such as bridging inequalities in employment and pay, increasing access to education, promoting diversity, and redressing apparent past wrongs, harms, or hindrances.

In American constitutional law, strict scrutiny is the highest and most stringent standard of judicial review, and results in a judge striking down a law unless the government can demonstrate in court that a law or regulation:

is necessary to a "compelling state interest";
that the law is "narrowly tailored" to achieving this compelling purpose;
and that the law uses the "least restrictive means" to achieve the purpose.

Contract agreement having a lawful object entered into voluntarily by multiple parties (may be explicitly written or oral)

A contract is a legally binding agreement which recognises and governs the rights and duties of the parties to the agreement. A contract is legally enforceable because it meets the requirements and approval of the law. An agreement typically involves the exchange of goods, services, money, or promises of any of those. In the event of breach of contract, the law awards the injured party access to legal remedies such as damages and cancellation.

The most probative 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."^[5] In government contracting 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.^[6] In addition, while the combination of "convincing anecdotal and statistical evidence is potent,"^[7] anecdotal evidence, by itself, will rarely suffice to justify an affirmative action program evaluated under strict scrutiny.^[8]

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 term used in law to signify "tending to prove." Probative evidence "seeks the truth". Generally in law, evidence that is not probative is inadmissible and the rules of evidence permit it to be excluded from a proceeding or stricken from the record "if objected to by opposing counsel." A balancing test may come into the picture if the value of the evidence needs to be weighed versus its prejudicial nature.

Evidence, broadly construed, is anything presented in support of an assertion. This support may be strong or weak. The strongest type of evidence is that which provides direct proof of the truth of an assertion. At the other extreme is evidence that is merely consistent with an assertion but does not rule out other, contradictory assertions, as in circumstantial evidence.

Statistics is the discipline that concerns the collection, organization, displaying, analysis, interpretation and presentation of data. In applying statistics to a scientific, industrial, or social problem, it is conventional to begin with a statistical population or a statistical model to be studied. Populations can be diverse groups of people or objects such as "all people living in a country" or "every atom composing a crystal". Statistics deals with every aspect of data, including the planning of data collection in terms of the design of surveys and experiments. See glossary of probability and statistics.

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The Equal Protection Clause is a clause within the text of the Fourteenth Amendment to the United States Constitution. The clause, which took effect in 1868, provides "nor shall any State [...] deny to any person within its jurisdiction the equal protection of the laws".

Executive Order 11246, signed by President Lyndon B. Johnson on September 24, 1965, established requirements for non-discriminatory practices in hiring and employment on the part of U.S. government contractors. It "prohibits federal contractors and federally assisted construction contractors and subcontractors, who do over $10,000 in Government business in one year from discriminating in employment decisions on the basis of race, color, religion, sex, or national origin." It also requires contractors to "take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex or national origin." The phrase affirmative action had appeared previously in Executive Order 10925 in 1961.

Fullilove v. Klutznick, 448 U.S. 448 (1980), was a case in which the United States Supreme Court held that the U.S. Congress could constitutionally use its spending power to remedy past discrimination. The case arose as a suit against the enforcement of provisions in a 1977 spending bill that required 10% of federal funds going towards public works programs to go to minority-owned companies.

Hopwood v. Texas, 78 F.3d 932, was the first successful legal challenge to a university's affirmative action policy in student admissions since Regents of the University of California v. Bakke. In Hopwood, four white plaintiffs who had been rejected from University of Texas at Austin's School of Law challenged the institution's admissions policy on equal protection grounds and prevailed. After seven years as a precedent in the U.S. Court of Appeals for the Fifth Circuit, the Hopwood decision was abrogated by the U.S. Supreme Court in 2003.

In American jurisprudence, a suspect classification is any classification of groups meeting a series of criteria suggesting they are likely the subject of discrimination. These classes receive closer scrutiny by courts when an Equal Protection claim alleging unconstitutional discrimination is asserted against a law, regulation, or other government action, or sometimes private action.

The Revised Philadelphia Plan, often called the Philadelphia Plan, required government contractors in Philadelphia to hire minority workers, under the authority of Executive Order 11246. Declared illegal in 1968, a revised version was successfully defended by the Nixon Administration and its allies in Congress against those who saw it as an illegal quota program. Department of Labor Assistant Secretary for Wage and Labor Standards Arthur Fletcher implemented the plan in 1969, based on an earlier plan developed in 1967 by the Office of Federal Contract Compliance and the Philadelphia Federal Executive Board. The plan required federal contractors to meet certain goals for the hiring of minority employees by specific dates in order to combat institutionalized discrimination on the part of specific skilled building trades unions. The plan was quickly extended to other cities.

Affirmative action in the United States is a set of laws, policies, guidelines, and administrative practices "intended to end and correct the effects of a specific form of discrimination" that include government-mandated, government-sanctioned and voluntary private programs. The programs tend to focus on access to education and employment, granting special consideration to historically excluded groups, specifically racial minorities or women. The impetus toward affirmative action is redressing the disadvantages associated with past and present discrimination. Further impetus is a desire to ensure public institutions, such as universities, hospitals, and police forces, are more representative of the populations they serve.

Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701 (2007), also known as the PICS case, is a United States Supreme Court case. At issue were efforts for voluntary school desegregation and integration in Seattle, Washington, and Louisville, Kentucky. Both school districts voluntarily used individualized racial classifications to achieve diversity and/or to avoid racial isolation through student assignment.

Ricci v. DeStefano, 557 U.S. 557 (2009), is a US labor law case of the United States Supreme Court on unlawful discrimination through disparate impact under the Civil Rights Act of 1964.

Wygant v. Jackson Board of Education, 476 U.S. 267 (1986), was a case before the United States Supreme Court. It is the seminal case for the "strong-basis-in-evidence standard" for affirmative action programs.

Bushey v. New York State Civil Serv. Comm'n, 733 F.2d 220, 224 is a US labor law case from the Second Circuit applying the test for affirmative action from United Steelworkers v. Weber.

A changes clause, in government contracting, is a required clause in United States government construction contracts.

Disparate treatment is one kind of unlawful discrimination in US labor law. In the United States, it means unequal behavior toward someone because of a protected characteristic under Title VII of the United States Civil Rights Act. This contrasts with disparate impact, where an employer applies a neutral rule that treats everyone equally in form, but has a disadvantageous effect on some people of a protected characteristic compared to others.

Lutheran Church–Missouri Synod v. FCC was a 1998 D.C. Circuit Court of Appeals case involving the Federal Communications Commission's (FCC) enforcement of the Equal Employment Opportunity Act and the Fifth Amendment. The FCC claimed that the Lutheran Church–Missouri Synod had violated the FCC's Equal Employment Opportunity requirements by not hiring enough minorities/women and by requiring a knowledge of Lutheran doctrine in order to be hired to work at its two FM and AM radio stations located in Clayton, Missouri.

Fisher v. University of Texas, 570 U.S. ___ (2013), also known as Fisher I, is a United States Supreme Court case concerning the affirmative action admissions policy of the University of Texas at Austin. The Supreme Court voided the lower appellate court's ruling in favor of the University and remanded the case, holding that the lower court had not applied the standard of strict scrutiny, articulated in Grutter v. Bollinger (2003) and Regents of the University of California v. Bakke (1978), to its admissions program. The Court's ruling in Fisher took Grutter and Bakke as given and did not directly revisit the constitutionality of using race as a factor in college admissions.

Schuette v. Coalition to Defend Affirmative Action, 572 U.S. 291 (2014), was a case before the United States Supreme Court concerning affirmative action and race- and sex-based discrimination in public university admissions. The Court held that the Fourteenth Amendment's Equal Protection Clause does not prevent states from enacting bans on affirmative action in education.

Johnson v. Transportation Agency, 480 U.S. 616 (1987), is the only United States Supreme Court case to address a sex-based affirmative action plan in the employment context. The case was brought by Paul Johnson, a male Santa Clara Transportation Agency employee, who was passed over for a promotion in favor of Diane Joyce, a female employee who Johnson argued was less qualified. The Court found that the plan did not violate the protection against discrimination on the basis of sex in Title VII of the Civil Rights Act of 1964.

Fisher v. University of Texas, 579 U.S. ___ (2016) is a United States Supreme Court case which held that the Court of Appeals for the Fifth Circuit correctly found that the University of Texas at Austin's undergraduate admissions policy survived strict scrutiny, in accordance with Fisher v. University of Texas (2013), which ruled that strict scrutiny should be applied to determine the constitutionality of the University's race-sensitive admissions policy.

Matal v. Tam, 582 U.S. ___, 137 S.Ct. 1744, 198 L.Ed.2d 366 (2017), is a United States Supreme Court case in which the Court affirmed unanimously the judgment of the Court of Appeals for the Federal Circuit that the provisions of the Lanham Act prohibiting registration of trademarks that may "disparage" persons, institutions, beliefs, or national symbols with the United States Patent and Trademark Office violated the First Amendment.

References

↑ See Patricia L. Donze, Comment, The Supreme Court's Denial of Certiorari in Dallas Firefighters Leaves Unsettled the Standard for Compelling Remedial Interests, 50 Case W. Res. L. Rev. 759, 779 (2000) (finding that some circuits require clear proof of the casual connection between past discrimination and present effects to satisfy the strong basis in evidence requirement, whereas other circuits let an inference suffice).
↑ See Derek M. Alphran, Articles, Proving Discrimination After Croson and Adarand: "If it Walks Like a Duck", 37 U.S.F. L. Rev. 887, 892-93 (2003) at 902 (noting that Croson did not produce a clear framework for courts to follow in deciding "whether a governmental actor has made a sufficient showing regarding the discriminatory effects alleged to exist or have existed in the public or private workplace in question").
↑ See City of Richmond v. J.A. Croson Co., 488 U.S. 469, 500 (1989).
↑ See id. at 498.
↑ Engineering Contractors Ass'n v. Metropolitan Dade County, 122 F.3d 895, 907 (11th Cir. 1997), cert. denied, 118 S. Ct. 1186 (1998) (quoting Ensley Branch, NAACP v. Seibels, 31 F.3d 1548, 1565 (11th Cir. 1994)); see also Contractors Ass'n v. City of Phila., 6 F.3d 990, 1004 (3d Cir. 1993).
↑ See Contractors Ass'n, supra, 1005.
↑ Id. at 1003 (quoting Coral Constr. Co. v. King County, 941 F.2d 910, 919 (9th Cir. 1991)).
↑ 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).

Strong-basis-in-evidence standard

Contents

Justifying affirmative action by a government entity

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References

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