The Demise of Procurement Disparity Studies?

Abstract

Disparity studies comparing various demographic groups with different outcomes in education, employment, health, housing, and income have been a staple of public policy analysis for decades. Depending on the variables controlled for, it may be argued that a group is underutilized, underrepresented, or even marginalized. Nowhere, however, have these studies had such legal significance as the field of public contracting. Now that era may be coming to an end. Disparity studies face a bleak future as predicates for race preferential procurement programs. Older disparity studies almost never identify any Constitutional or statutory violations and governments will be reluctant to fund future studies that find them guilty of committing or tolerating such violations. To reach statistical significance, studies need to use racial and ethnic group clusters courts are likely to find overinclusive. Pretrial required admissions and depositions can easily establish those facts and cases may be resolved without more expensive trials. Still, plaintiff lawyers may wish to calibrate how much evidence about the deficiency of a disparity study a specific judge and possibly an appellate court will require.