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

By Goodman, Christine Chambers | Albany Law Review, Spring 2003 | Go to article overview
Save to active project

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


Goodman, Christine Chambers, Albany Law Review


I. 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.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
Loading One moment ...
Project items
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited article

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

Settings

Typeface
Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

While we understand printed pages are helpful to our users, this limitation is necessary to help protect our publishers' copyrighted material and prevent its unlawful distribution. We are sorry for any inconvenience.
Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.

Are you sure you want to delete this highlight?