Disregarding Intent: Using Statistical Evidence to Provide Greater Protection of the Laws

Abstract

This article examines the utility of statistical evidence for cases alleging unlawful bias in government contracting in violation of Section 31 of the California Constitution, which was added in 1996 and was based on the voters' approval of Proposition 209. Goodman evaluates the opinion of the California Supreme Court in Hi-Voltage Wire Works, Inc. v. City of San Jose which discussed the scope of Section 31. She argues that, as demonstrated by Hi-Voltage, California is progressing towards the acceptance of disparate-impact evidence for proving a violation of the anti-preference and anti-discrimination provisions of Section 31. Goodman then examines the conflicting California Court of Appeal decisions, Barlow v. Davis and Connerly v. State Personnel Board, on the issue of agencies' statistical recordkeeping obligations for public contracting jobs. The article explains the importance of statistics in public contracting discrimination cases and demonstrates that agencies' failure to maintain statistical information regarding the bid process and the participating contractors hinders litigants' ability to prove unlawful discrimination. The article concludes with a discussion of potential solutions by the California courts, legislature and agencies.

Keywords: statistics, evidence, discrimination, California, proposition 209

JEL Classification: K10