How the Supreme Court launched the disparity study industry

January 29, 2014 | By RALPH KASARDA

This last Sunday the Wall Street Journal published an excellent article written by Roger Clegg of the Center for Equal Opportunity, and John Sullivan of Croson Legal Services.  The article marks the 25th anniversary of an important Supreme Court decision in City of Richmond v. J.A. Croson Co.

In Croson, the Supreme Court held that a city’s race-conscious public contracting program violated the Fourteenth Amendment.  The city’s practice was to award contracts on the basis of race in an effort to remedy past discrimination.  Except there was one slight problem.  The Supreme Court found the city lacked evidence of discrimination, and its program amounted to discrimination against contractors of certain races not favored by the city.

The Croson Court reached a good result.  However, as Clegg and Sullivan note in their article, “with a single sentence in Croson, Justice O’Connor created a loophole and launched a new industry.”  That industry – the disparity study industry – seized upon the following language in the Court’s opinion:

Where there is a significant statistical disparity between the number of qualified minority contractors willing and able to perform a particular service and the number of such contractors actually engaged by the locality or the locality’s prime contractors, an inference of discriminatory exclusion could arise.

That formula in Croson prompted the use of statistical disparity studies by governmental units eager to implement racial preference contracting programs.  Since Croson, federal, state, and local governments have spent more than $100 million of taxpayers’ money in an effort to manufacture evidence of discrimination using statistical disparity studies.  But many disparity studies are based on junk science, and programs justified by such studies often lead to more racial discrimination.  Why do government officials pour money into such studies?  Clegg and Sullivan have the answer: racial politics.  “[M]any politicians find a racial spoils system advantageous – and if the door is left even slightly ajar they will muscle through it.”   For instance, the California High Speed Rail Authority enforces racial preferences even without a disparity study, in other words, without any purported evidence of discrimination.

Attorneys in PLF’s Equality Under the Law Program believe that all racial discrimination is wrong and litigate to stop programs that violate equal protection.