Associated General Contractors of Ohio , Inc. v. SANDRA A. DRABIK, Director, Department of Administrative Services

16 Assoc. Gen’l Contractors,
et al. v. Drabik, et al.
No. 98-4393
Graham’s order in Associated Gen. Contrs. of Ohio, Inc.
Thus, we limit our holding today to the area of state
procurement contracting. We do so in the interests of
state and federal judicial comity and because the facts of
the case at bar are amenable to a limited holding.
85 Ohio St. 3d at 274; 707 N.E.2d at 928.
Although Ritchey involved not state construction set-asides
but the preference for MBEs in purchasing contracts, the
statistics and the rationale underlying both those MBE
programs are the same, and the constitutionality of the overall
MBE scheme was before the state court, as it was before the
district court. A federal court owes no duty to abstain in
deference to a state court when a federal constitutional
question is at issue. See England v. Louisiana Bd. of Medical
Examiners, 375 U.S. 411, 415-16 (1964) (noting the “primacy
of the federal judiciary in deciding questions of federal law”).
Moreover, even if the Ohio Supreme Court could have
avoided the federal constitutional question in Ritchey by a
decision on state law grounds, i.e., that Ritchey is not
“Oriental,” such a decision would not render moot the federal
constitutional issue presented in the instant case. We note, in
closing, that our opinion is not reconcilable with Ritchey,
despite the Ohio Supreme Court’s attempt to distinguish the
cases. See 50 F. Supp. 2d at 744.
III
For the foregoing reasons, the judgment of the district court
is AFFIRMED.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0185P (6th Cir.)
File Name: 00a0185p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
ASSOCIATED GENERAL
C ONTRACTORS OF OHIO , INC.;
ASSOCIATED GENERAL
C ONTRACTORS OF
NORTHWEST OHIO , INC.,
Plaintiffs-Appellees,
v.
S ANDRA A. DRABIK, Director,
Department of Administrative
Services; R EGINALD
W ILKINSON , Director of
Rehabilitation and Correction,
Defendants-Appellants.
;>

1
No. 98-4393
Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 98-00943—James L. Graham, District Judge.
Argued: January 28, 2000
Decided and Filed: June 1, 2000
Before: KENNEDY, RYAN, and BOGGS, Circuit Judges.

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2 Assoc. Gen’l Contractors,
et al. v. Drabik, et al.
No. 98-4393
_________________
COUNSEL
ARGUED: Judith L. French, OFFICE OF THE
ATTORNEY GENERAL OF OHIO, Columbus, Ohio, for
Appellants. Kevin R. McDermott, SCHOTTENSTEIN, ZOX
& DUNN, Columbus, Ohio, for Appellees. ON BRIEF:
Judith L. French, Karen L. Killian, OFFICE OF THE
ATTORNEY GENERAL OF OHIO, Columbus, Ohio, for
Appellants. Kevin R. McDermott, SCHOTTENSTEIN, ZOX
& DUNN, Columbus, Ohio, for Appellees. James L.
Hardiman, HARDIMAN, BUCHANAN, HOWLAND &
TRIVERS, Cleveland, Ohio, Michele R. Comer, Cleveland,
Ohio, Norman C. Amaker, LOYOLA UNIVERSITY OF
CHICAGO SCHOOL OF LAW, Chicago, Illinois, Vincene
Verdun, OHIO STATE COLLEGE OF LAW, Columbus,
Ohio, for Amici Curiae.
_________________
OPINION
_________________
BOGGS, Circuit Judge. Associated General Contractors of
Ohio, and Associated General Contractors of Northwest Ohio
(“Plaintiffs-Appellees”), representing Ohio building
contractors, sued to stop the award of a construction contract
for the Toledo Correctional Facility to a minority-owned
business (“MBE”), in a bidding process from which non-
minority-owned firms were statutorily excluded under Ohio’s
Minority Business Enterprise Act (“MBEA”). Plaintiffs-
Appellees claimed the MBEA is unconstitutional, in that it
violates the Fourteenth Amendment’s Equal Protection
Clause. The district court agreed, and permanently enjoined
the state from awarding any construction contracts thereunder.
Defendant-Appellant Sandra Drabik, Director of the Ohio
Department of Administrative Services (“DAS”), which
coordinates and manages state construction projects, and
No. 98-4393 Assoc. Gen’l Contractors,
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15
however, “a limited exception to the ‘virtually unflagging’
obligation of federal courts to exercise the jurisdiction given
them.” Id. at 968 (citing Colorado River Water Conservation
Dist., 424 U.S. 800, 813, & 817 (1976)).
Ritchey, the state case in favor of which the district court
declined to abstain, concerned the refusal of the state to
certify as an MBE a produce company wholly owned by
Namid Ritchey, a naturalized native of Lebanon. Ritchey
wanted preference, or if not, wanted no one to get preference.
After several rounds of DAS administrative rulings, appeals
therefrom, and a final determination by the Director of DAS
that Ritchey Produce was not certifiable as an MBE because
Namid Ritchey was not “Oriental,” Ritchey took his case to
the Ohio courts. The questions presented were (a) whether
the MBEA is constitutional, and (b) whether a person of
Lebanese origin qualifies as an “Oriental.” The common
pleas court, adopting the magistrate judge’s
recommendations, held that the race-based MBE program was
unconstitutional, and that MBE certification could only
survive strict scrutiny by being recast in terms of economic
disadvantage. Ohio appealed, whereupon the Ohio Court of
Appeals held that “the state’s MBE program is a race per-se
classification” that violates the Equal Protection Clause, and
did not reach the second question of Ritchey’s racial status.
1997 WL 629965, at *3. One judge concurred in the
judgment, but on the grounds that Ritchey was, indeed, an
Oriental. See id. at *3-4 (Tyack, J., concurring). The Ohio
Supreme Court reversed the lower court’s holding that the
MBEA was unconstitutional, and also found “that the term
‘Orientals,’ as that term is used in R.C. 122.71(E)(1), does not
include people of Lebanese ancestry.” 85 Ohio St. 3d at 272;
707 N.E.2d at 927. It then took note of the apparent conflict
between its ruling and that of the federal district court. It
sought to minimize the conflict, by insisting that its holding
that the MBEA is constitutional was a narrow one:
We specifically wish to avoid a direct conflict between
the case at bar and the specific requirements of Judge

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14 Assoc. Gen’l Contractors,
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No. 98-4393
we note that in a case of this importance it would have been
helpful had the district court reduced to a contemporaneous
writing the reasoning behind its decision of November 2,
1998. Its written ruling of May 20, 1999, denying a motion
for the stay of its decision pending appeal, is not an adequate
substitute. See Associated Gen’l Contractors of Ohio, Inc., et
al. v. Drabik, et al., 50 F. Supp. 2d 741 (S.D. Oh. 1999).
C
The State of Ohio argues that the district court should have
abstained from exercising its jurisdiction in this case, on
Pullman grounds, given the pendency before the Ohio
Supreme Court of Ritchey. We are not persuaded.
Pullman abstention is derived from a case in which a
Fourteenth Amendment Equal Protection Clause challenge to
a Texas railroad personnel regulation was held to have been
prematurely adjudicated in federal court, since a state court’s
consideration might have rendered the regulation invalid on
state law grounds and rendered the federal constitutional
question moot. See Railroad Comm’n of Texas v. Pullman
Co., 312 U.S. 496 (1941). The Pullman abstention doctrine
requires that “when a federal constitutional claim is premised
on an unsettled question of state law, the federal court should
stay its hand in order to provide the state courts an
opportunity to settle the underlying state law question and
thus avoid the possibility of unnecessarily deciding a
constitutional question.” Harris County Comm’rs Court v.
Moore, 420 U.S. 77, 83 (1975).
A district court’s denial of a motion to abstain is reviewed
by this court de novo. See McDonald v. Village of Northport,
Mich., 164 F.3d 964, 967-68 (6th Cir. 1999) (citing
Traughber v. Beauchane, 760 F.2d 673, 676 (6th Cir. 1985)
(“Because theories of state and federal law, and expressions
of federalism and comity, are so interrelated in the decision to
abstain such dispositions are elevated to a level of importance
dictating de novo appellate review.”)). Abstention is,
No. 98-4393 Assoc. Gen’l Contractors,
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3
other Defendants-Appellants, appeal the district court’s order.
We affirm.
I
Ohio passed the Minority Business Enterprise Act
(“MBEA”) in 1980. This legislation set aside five percent, by
value, of all state construction projects for bidding by certified
MBEs exclusively. O.R.C. § 123.151(C)(1). Other
provisions govern subcontracting to MBEs of work awarded
under this scheme. Ohio defines an MBE as a venture owned
and controlled, to the extent of fifty-one percent, for at least
one year previous, by “members of one of the following
economically disadvantaged groups: Blacks, American
Indians, Hispanics, and Orientals.” O.R.C. § 122.71(E).
Other provisions establish procedures for certification and
listing as an MBE; in what follows, “MBE” will be
understood to refer to such officially certified businesses. As
of October 1998, DAS maintained a list of 1,180 MBEs.
Pursuant to the MBEA, DAS decided to set aside, for
MBEs only, bidding for construction of the Toledo
Correctional Facility’s Administration Building, which
represents twenty percent of the total project’s value of $50
million. Non-MBEs, many of whom are members of the
plaintiff trade associations, will thus be excluded on racial
grounds from bidding on that aspect of the project, and will
be restricted in their participation as subcontractors. MBEs
are, of course, free to bid on, and participate fully in, non-set-
aside as well as set-aside contracts.
This court ruled in 1983 that the MBEA was constitutional,
see Ohio Contractors Ass’n v. Keip, 713 F.2d 167 (6th Cir.
1983), overruling Judge Kinneary’s judgment in the district
court that Ohio’s scheme was unconstitutional on its face, see
Ohio Contractors Ass’n v. Keip, No. C-2-82-446 (S.D. Oh.
Dec. 15, 1982). Subsequently, the Supreme Court, in two
landmark decisions, explained and applied at length the
criteria of strict scrutiny under which such racially preferential

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4 Assoc. Gen’l Contractors,
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No. 98-4393
set-asides were to be evaluated. See City of Richmond v. J.A.
Croson Co., 488 U.S. 469 (1989); Adarand Constructors, Inc.
v. Pena, 515 U.S. 200 (1995). This court had already, in
Michigan Road Builders Ass’n v. Milliken, 834 F.2d 583 (6th
Cir. 1987), taken note of the trend developing both in the
Supreme Court and Circuit Courts (which was to culminate
in Croson and Adarand) to apply the Equal Protection Clause
strictly to racial discrimination in government contracting.
Michigan Road Builders departed from the more relaxed
treatment that Keip had accorded to equal protection
challenges to state contracting disputes. See id. at 598
(Lively, C.J., dissenting). Croson also noted that same
evolution in this Circuit. See 488 U.S. at 477.
Ohio’s MBEA was passed after many years, during the
1970s, of executive and administrative agency task force
consideration of complaints regarding, and statistics
concerning, minority group participation in state construction
contracts. These, and the legislative hearings and debates that
immediately preceded passage of the MBEA, are detailed by
Judge Kinneary in his 1982 decision striking down that act.
In the light of Croson and Adarand, the district court in this
case returned to the prescient standards under which the
MBEA had been invalidated in 1982. Reviewing the
evidence, Judge Graham, at the close of a hearing held on
October 26, 1998 to consider the state’s request for a six-
month continuance (which was denied), cites Judge
Kinneary’s 1982 analysis, which anticipated that of Croson,
with complete approval. Judge Graham found the MBEA
patently unconstitutional: “I am mindful of the fact that it is
certainly unusual for a court to declare a state statute which
has such far-reaching effects unconstitutional from the bench,
but I cannot imagine any clearer case than this for the
unconstitutionality of the state statute.”
The district court also referred to a 1997 ruling from the
Ohio Court of Appeals on the MBEA. In that case, a business
owner of Lebanese descent, who was denied certification as
No. 98-4393 Assoc. Gen’l Contractors,
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13
the MBEA. But the MBEA has been in existence for almost
twenty years, while Croson was decided eleven years, and
Adarand more than four years, ago. Ohio provides no
specifics as to the avenues it would pursue to marshal the
statistics it apparently never thought relevant until now.
The district court found that the supplementation of the
state’s existing data which might be offered given a six-
month’s continuance would not sufficiently enhance the
relevance of the evidence to justify the delay. As Appellees
point out in their Brief at 50-51, under Croson, the state must
have had sufficient evidentiary justification for a racially
conscious statute in advance of its passage; the time of a
challenge to the statute, at trial, is not the time for the state to
undertake factfinding. See Croson, 488 U.S. at 504 (requiring
that governmental entities “must identify that discrimination
. . . with some specificity before they may use race-conscious
relief” (emphasis added)).
The district court also noted that the state had admittedly
been lax, to say the least, in maintaining the type of statistics
that would be necessary to undergird its affirmative action
program. The proper maintenance of current statistics is
relevant to the requisite narrow tailoring of such a program,
in order to judge its appropriate limits. But, as noted above,
the state does not even know how many minority-owned
businesses are not certified as MBEs, and how many of them
have been successful in obtaining state contracts. The court’s
review of these deficiencies showed a firm grasp of the
evidence that had been offered. Therefore, it cannot be said
that the district court abused its discretion in denying the
motion for a continuance or in consolidating the preliminary
injunction hearing with a trial on the merits pursuant to Fed.
R. Civ. P. 65(a)(2).
The district court’s findings of fact, though made from the
bench, are sufficient to permit this court to weigh the merits
of the ruling and this appeal; oral findings of fact are
explicitly contemplated by Fed. R. Civ. P. 52(a). However,

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12 Assoc. Gen’l Contractors,
et al. v. Drabik, et al.
No. 98-4393
race-based means were considered as alternatives to the goal.
See 488 U.S. at 507. Yet, as the district court noted in an
opinion written to accompany its denial of a motion to stay its
judgment pending this appeal, the historical record contains
no evidence “that the Ohio General Assembly gave any
consideration to the use of race-neutral means to increase
minority participation in state contracting before resorting to
race-based quotas.” Associated Gen’l Contractors of Ohio,
Inc., et al. v. Drabik, et al., 50 F. Supp. 2d 741, 764 (S.D. Oh.
1999).
B
The district court’s denial of a motion for continuance, and
its decision to consolidate the preliminary injunction hearing
with a hearing on the merits, pursuant to Fed. R. Civ. P.
65(a)(2), were based on its findings of fact, and its view of the
sufficiency of the evidence presented; it deemed the
additional evidence that the state sought time to muster
unlikely to be relevant. A district court’s determinations of
relevancy are subject to review for abuse of discretion. See
United States v. Seago, 930 F.2d 482, 494 (6th Cir. 1991).
The denial of a motion for continuance is also reviewed for
abuse of discretion. See United States v. Martin, 740 F.2d
1352, 1360 (6th Cir. 1984) (citing Avery v,. Alabama, 308
U.S. 444 (1940)). “To determine if there has been abuse, we
look to see if the defendant suffered any actual prejudice as a
result of the denial, [and] whether additional time would have
produced more witnesses or added something to the
defendant’s case.” Ibid.
We also review for abuse of discretion a district court’s
decision to consolidate a hearing for a preliminary injunction
with a trial on the merits. See, e.g., Berry v. Bean, 796 F.2d
713, 719 (4th Cir. 1986); Northern Kentucky Chiropractic v.
Ramey, No. 95-5645, 1997 WL 35571, at *2 (6th Cir. Jan. 29,
1997). The district court, in consolidating the preliminary
injunction hearing with a trial on the merits, denied the state’s
request for additional time to gather evidentiary support for
No. 98-4393 Assoc. Gen’l Contractors,
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5
an MBE on the grounds he was not an Oriental, claimed his
right to equal protection was violated by the MBEA as
applied to him. The Court of Appeals affirmed the trial
court’s ruling that the MBEA’s per-se race classification is
unconstitutional. That ruling has since been overturned by the
Ohio Supreme Court, which, in a lengthy review of minority
set-aside jurisprudence, concluded that the MBEA was
constitutional. See Ritchey Produce Co. v. State of Ohio
Dep’t of Administrative Services, 1997 WL 629965 (Ohio
App. 10 Dist. Oct. 7, 1997), rev’d, 85 Ohio St. 3d 194, 707
N.E.2d 871 (1999). At the time of the district court’s ruling,
Ritchey was still pending in the Ohio Supreme Court. Hence,
Ohio argued that the district court should have abstained from
making a decision. A motion to that effect was filed with the
district court, which denied it after an extensive consideration
of abstention doctrine. This appeal also argues that the
district court’s denial of the abstention motion was error.
II
A
“The constitutionality of a statute is a question of law,
reviewable de novo.” Hadix v. Johnson, 144 F.3d 925, 938
(6th Cir. 1998) (citing United States v. Brown, 25 F.3d 307,
308 (6th Cir), cert. denied, 513 U.S. 1045 (1994)).
Croson reaffirmed the “strict scrutiny” standard of review
adopted by the Court for preferential programs based on racial
or ethnic criteria in Wygant v. Jackson Bd. of Educ., 476 U.S.
267, 274 (1986). See Croson, 488 U.S. at 494. This requires
that such a program be “narrowly tailored” to satisfy a
“compelling governmental interest.” 476 U.S. at 274 (quoting
Fullilove v. Klutznik, 448 U.S. 448, 480 (1980) (“narrowly
tailored”); Pallmore v. Sidoti, 466 U.S. 429, 432 (1984)
(“compelling governmental interest”)). Adarand reiterated
this standard for “all racial classifications imposed by
whatever federal, state, or local governmental actor . . . .” See
515 U.S. at 227.

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6 Assoc. Gen’l Contractors,
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In discussing this issue, it is important to identify precisely
the compelling state interest that might be able to overcome
the general presumption against racial classification. It is
clear that a government “has a compelling interest in assuring
that public dollars . . . do not serve to finance the evil of
private prejudice.” Croson, 488 U.S. at 492. However,
statistical disparity in the proportion of contracts awarded to
a particular group, standing alone, does not demonstrate such
an evil. It is an unfortunate aspect of reality that there is
never more than 100% of anything; thus, raising the
percentage allocated to some portion of the total population
necessarily means a corresponding reduction in what is
available to other portions.
There is no question that remedying the effects of past
discrimination constitutes a compelling governmental interest.
See Croson, 488 U.S. at 503; United Black Firefighters Ass’n
v. City of Akron, 976 F.2d 999, 1010-11 (6th Cir. 1992).
However, to make this showing, a state cannot rely on mere
speculation, or legislative pronouncements, of past
discrimination. Rather, the Supreme Court has told us that
the state bears the burden of demonstrating a “strong basis in
evidence for its conclusion that remedial action was
necessary” by proving either that the state itself discriminated
in the past or was a passive participant in private industry’s
discriminatory practices. Croson, 488 U.S. at 486-92, 500.
Thus, the linchpin of the Croson analysis, for present
purposes, is not simply its mandating of strict scrutiny, the
requirement that a program be narrowly tailored to achieve a
compelling government interest, but above all its holding that
governments must “identify discrimination with some
specificity before they may use race-conscious relief;”
explicit “findings of a constitutional or statutory violation
must be made.” 488 U.S. at 497.
In ruling against the State of Ohio in 1982, Judge Kinneary
had held that the evidence presented by state studies from the
middle and latter 1970s was inadequate to support a
No. 98-4393 Assoc. Gen’l Contractors,
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11
may legitimately ask why they are forced to share this
‘remedial relief’ with an Aleut citizen who moves to
Richmond tomorrow?” Croson, 488 U.S. at 506.
In addition to the foregoing problems, Ohio’s own
“underutilization” statistics suffer from a fatal conceptual
flaw, as the district court noted: they do not report the actual
use of minority firms; they only report the use of minority
firms who have gone to the trouble of being certified and
listed among the state’s 1,180 MBEs. While it might be true
that most or all of the relevant firms would have sought to
take advantage of the special minority program, there is
simply no examination of whether contracts are being
awarded to minority firms who have never sought such
preference, whether from principle, oversight, calculation of
the worth of the program, or for some other reason, and who
have been awarded contracts in open bidding.
Narrow tailoring also implies some sensitivity to the
possibility that a program might someday have satisfied its
purposes. As previously noted, a race-based preference
program must be “appropriately limited such that it ‘will not
last longer than the discriminatory effects it is designed to
eliminate.’” Adarand, 515 U.S. at 238 (quoting Fullilove v.
Klutznick, 448 U.S. 491, 513 (1980)). The district court in
this case took note of the outdated character of any evidence
that might have been marshaled in support of the MBEA and
added that even if such data had been sufficient to justify the
statute twenty years ago, it would not suffice to continue to
justify it forever. During the debate over the bill in 1980, an
amendment had been offered to include a three-year “sunset”
provision; this was defeated. The MBEA has remained in
effect for twenty years and has no set expiration. This
despite, at best, marginally adequate evidence of
discrimination from 1975, 1978, and 1979. As quoted above,
supra, at 9, Ohio concedes this deficiency.
Finally, as mentioned above, one of the factors Croson
identified as indicative of narrow tailoring is whether non-

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The only cases found to present the necessary “compelling
interest” sufficient to “justif[y] a narrowly tailored race-based
remedy” are those that expose, as in the case of the Alabama
Department of Public Safety in 1987, “pervasive, systematic,
and obstinate discriminatory conduct,” Adarand, 515 U.S. at
237 (citing United States v. Paradise, 480 U.S. 149 (1987)).
Ohio has made no such showing.
A second and separate hurdle for the MBEA is its failure of
narrow tailoring. Adarand teaches that a court called upon to
address the question of narrow tailoring must ask, “for
example, whether there was ‘any consideration of the use of
race-neutral means to increase minority business
participation’ in government contracting, Croson, [488 U.S.]
at 507 . . . or whether the program was appropriately limited
such that it ‘will not last longer than the discriminatory effects
it is designed to eliminate,’ Fullilove, [448 U.S.] at 513. . . .”
Adarand, 515 U.S. at 237-38. A narrowly-tailored set-aside
program must be “linked to identified discrimination.”
Croson, 488 U.S. at 507. Its criteria and measures of success
must be particularized, not reduced to rigid quotas driven by
“simple administrative convenience.” Id. at 508. It must also
not suffer from “overinclusiveness.” Id. at 506.
To begin with the last-named factor in narrow tailoring
analysis, the MBEA suffers from defects both of over- and
underinclusiveness. By lumping together the groups of
Blacks, Native Americans, Hispanics, and Orientals (and
leaving unclear the exact extent of the last two designations),
the MBEA may well provide preference where there has been
no discrimination, and may not provide relief to groups where
discrimination might have been proven. Thus, the MBEA is
satisfied if contractors of, let us say, Thai origin, who might
never have been seen in Ohio until recently, receive 10% of
state contracts, while African-Americans receive none.
Obviously, other possible examples of this sort can be readily
imagined. As the Supreme Court remarked, invalidating
Richmond’s set-aside program, if it were “‘narrowly tailored’
to compensate black contractors for past discrimination, one
No. 98-4393 Assoc. Gen’l Contractors,
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conclusion of specific historical discrimination calling for
remediation, such as might justify the MBEA. More recently,
this court has ruled that seventeen-year old evidence of
discrimination is “too remote to support a finding of
compelling government interest to justify the affirmative
action plan,” and struck down a continuing affirmative action
program for female firefighters on the ground that outdated
evidence does not reflect “prior unremedied or current
discrimination.” Brunet v. City of Columbus, 1 F.3d 390, 409
(6th Cir. 1993), cert. denied, 510 U.S. 1164 (1994). The
MBEA suffers from the same defect.
Moreover, Judge Kinneary anticipated Croson’s insistence
on explicit findings in the following observation:
In all the documentary evidence relating to the progress
of [the MBEA] through the legislature, including drafts
of bills, Legislative Service Commission summaries, and
transcripts of floor debate, there is not one clear,
unambiguous statement of a finding of discrimination to
be found.
When, in 1983, this court overturned Judge Kineary’s
ruling in that case, we did so out of deference to the
legislature, giving it the benefit of the doubt that implicit
factfinding of discrimination underlay the MBEA. See Keip,
713 F.3d at 170-71. But the Supreme Court has since
required more. See Miller v. Johnson, 515 U.S. 900, 923
(1995) (holding legislation adopting racial distinctions to be
entitled to no deference); Croson, 488 U.S. at 499 (holding
mere assertions of legislative purposes insufficient).
Proponents of racially discriminatory systems such as the
MBEA have sought to generate the necessary evidence by a
variety of means. See, e.g., George Stephanopoulos &
Christopher Edley, Jr., Affirmative Action Review: Report to
the President (July 19, 1995), repr. in BNA Daily Labor
Report, 139 DLR S-1, 1995. However, such efforts have
generally focused on mere “underrepresentation” – a lesser

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percentage of contracts awarded to a particular group than that
group’s percentage in the general population. See, e.g., id. at
§ 9.1.2 (reporting that, in 1986, “minority business received
only . . . 2.7 percent of the prime contract dollar” and
characterizing that situation, without further analysis, as
“discrimination”); Croson, 488 U.S. at 479-80 (noting that
Richmond’s set-aside scheme relied on findings that only
.67% of prime city construction contracts had been awarded
to minority firms, in a city with a 50% African-American
population). Raw statistical disparity of this sort is part of the
evidence offered by Ohio in this case. See JA IV at 45
(Defendant’s Memorandum in Opposition to Plaintiff’s
Motion for a Preliminary Injunction). But such evidence of
mere statistical disparities has been firmly rejected as
insufficient by the Supreme Court, particularly in a context
such as contracting, where special qualifications are so
relevant. See Croson, 488 U.S. at 501-02. And although
Ohio’s most “compelling” statistical evidence compares the
percentage of contracts awarded to minorities to the
percentage of minority-owned businesses in Ohio – thus
marshaling stronger statistics than the statistics in Croson –
it is still insufficient. The problem with Ohio’s statistical
comparison is that the percentage of minority-owned
businesses in Ohio (7% as of 1978) did not take into account
how many of those businesses were construction companies
of any sort, let alone how many were qualified, willing, and
able to perform state construction contracts.
The statistical evidence that the Ohio legislature had before
it, when the MBEA was enacted, consisted of four broad
categories of data. The first was statistical evidence gathered
by DAS for the years 1957 to 1979. This showed that only
0.21 percent of all state construction contracts went to
“identifiable minority businesses.” Brief of Defendants-
Appellants at 14. The second was a DAS study, cited in Keip,
713 F.2d at 171, showing that from 1959 to 1975, of the $1.14
billion paid out by the state in general construction contracts,
only 0.24% went to minority businesses. Id. at 15. The third
was a 1977 report, issued by the Ohio Legislative Budget
No. 98-4393 Assoc. Gen’l Contractors,
et al. v. Drabik, et al.
9
Office, detailing Ohio Department of Transportation
(“ODOT”) construction contracts garnered by minorities,
showing figures of 0.13, 0.3, and 0.18 percent for the years
1975, 1976, and 1977, respectively. Ibid. Fourth, a 1978 task
force established by the Ohio Attorney General to study the
problem concluded that during 1975-77 minority businesses
comprised seven percent of all Ohio businesses, but minority
businesses received only 0.5 percent of ODOT purchasing
contracts. Id. at 15-16. Ohio contends that “[t]his is precisely
the kind of statistical data lacking in Croson.” Id. at 18.
Though this was more data than was submitted in Croson, it
is not sufficient under that standard.
The deficiencies of the data are glaringly clear. Much of it
is severely limited in scope (ODOT contracts) or is irrelevant
to this case (ODOT purchasing contracts). As noted
previously, the data does not distinguish minority construction
contractors from minority businesses generally, and a fortiori
makes no attempt to identify minority construction
contracting firms that are ready, willing, and able to perform
state construction contracts of any particular size. And
although Ohio insists that its program is “narrowly tailored,”
id. at 20-28, it concedes that “AGC showed that the State had
not performed a recent study.” Id. at 19.
Even statistical comparisons that might be apparently more
pertinent, such as with the percentage of all firms qualified, in
some minimal sense, to perform the work in question, would
also fail to satisfy the Court’s criteria. If MBEs comprise
10% of the total number of contracting firms in the state, but
only get 3% of the dollar value of certain contracts, that does
not alone show discrimination, or even disparity. It does not
account for the relative size of the firms, either in terms of
their ability to do particular work or in terms of the number of
tasks they have the resources to complete. Any time two non-
minority firms merge, or a minority firm splits in two, the
total proportion of minority contracting firms in the state
increases; but it would be ludicrous to imagine that such
alteration affects the overall degree of discrimination.

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