                                                                          RECOMMENDED FOR FULL-TEXT PUBLICATION
16    Assoc. Gen’l Contractors,                   No. 98-4393                  Pursuant to Sixth Circuit Rule 206
      et al. v. Drabik, et al.                                         ELECTRONIC CITATION: 2000 FED App. 0185P (6th Cir.)
                                                                                   File Name: 00a0185p.06

  Graham’s order in Associated Gen. Contrs. of Ohio, Inc.
  Thus, we limit our holding today to the area of state            UNITED STATES COURT OF APPEALS
  procurement contracting. We do so in the interests of
  state and federal judicial comity and because the facts of                     FOR THE SIXTH CIRCUIT
  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     ASSOCIATED GENERAL
                                                                                                      
but the preference for MBEs in purchasing contracts, the           CONTRACTORS OF OHIO, INC.;
                                                                                                      
statistics and the rationale underlying both those MBE             ASSOCIATED GENERAL
                                                                                                      
programs are the same, and the constitutionality of the overall                                          No. 98-4393
                                                                   CONTRACTORS OF
                                                                                                      
MBE scheme was before the state court, as it was before the
                                                                   NORTHWEST OHIO, INC.,               >
                                                                                                      
district court. A federal court owes no duty to abstain in
                                                                           Plaintiffs-Appellees,
                                                                                                      
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                   v.

                                                                   SANDRA A. DRABIK, Director, 
of the federal judiciary in deciding questions of federal law”).

                                                                                                      
Moreover, even if the Ohio Supreme Court could have
                                                                   Department of Administrative 
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      Services; REGINALD

                                                                   Rehabilitation and Correction, 
constitutional issue presented in the instant case. We note, in    WILKINSON, Director of

                                                                          Defendants-Appellants. 
closing, that our opinion is not reconcilable with Ritchey,

                                                                                                      
despite the Ohio Supreme Court’s attempt to distinguish the

                                                                                                     1
cases. See 50 F. Supp. 2d at 744.
                              III
                                                                         Appeal from the United States District Court
   For the foregoing reasons, the judgment of the district court        for the Southern District of Ohio at Columbus.
is AFFIRMED.                                                          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.



                                                                                               1
2    Assoc. Gen’l Contractors,                  No. 98-4393      No. 98-4393                   Assoc. Gen’l Contractors,      15
     et al. v. Drabik, et al.                                                                      et al. v. Drabik, et al.

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

we note that in a case of this importance it would have been       other Defendants-Appellants, appeal the district court’s order.
helpful had the district court reduced to a contemporaneous        We affirm.
writing the reasoning behind its decision of November 2,
1998. Its written ruling of May 20, 1999, denying a motion                                         I
for the stay of its decision pending appeal, is not an adequate
substitute. See Associated Gen’l Contractors of Ohio, Inc., et        Ohio passed the Minority Business Enterprise Act
al. v. Drabik, et al., 50 F. Supp. 2d 741 (S.D. Oh. 1999).         (“MBEA”) in 1980. This legislation set aside five percent, by
                                                                   value, of all state construction projects for bidding by certified
                               C                                   MBEs exclusively. O.R.C. § 123.151(C)(1). Other
                                                                   provisions govern subcontracting to MBEs of work awarded
  The State of Ohio argues that the district court should have     under this scheme. Ohio defines an MBE as a venture owned
abstained from exercising its jurisdiction in this case, on        and controlled, to the extent of fifty-one percent, for at least
Pullman grounds, given the pendency before the Ohio                one year previous, by “members of one of the following
Supreme Court of Ritchey. We are not persuaded.                    economically disadvantaged groups: Blacks, American
                                                                   Indians, Hispanics, and Orientals.” O.R.C. § 122.71(E).
   Pullman abstention is derived from a case in which a            Other provisions establish procedures for certification and
Fourteenth Amendment Equal Protection Clause challenge to          listing as an MBE; in what follows, “MBE” will be
a Texas railroad personnel regulation was held to have been        understood to refer to such officially certified businesses. As
prematurely adjudicated in federal court, since a state court’s    of October 1998, DAS maintained a list of 1,180 MBEs.
consideration might have rendered the regulation invalid on
state law grounds and rendered the federal constitutional            Pursuant to the MBEA, DAS decided to set aside, for
question moot. See Railroad Comm’n of Texas v. Pullman             MBEs only, bidding for construction of the Toledo
Co., 312 U.S. 496 (1941). The Pullman abstention doctrine          Correctional Facility’s Administration Building, which
requires that “when a federal constitutional claim is premised     represents twenty percent of the total project’s value of $50
on an unsettled question of state law, the federal court should    million. Non-MBEs, many of whom are members of the
stay its hand in order to provide the state courts an              plaintiff trade associations, will thus be excluded on racial
opportunity to settle the underlying state law question and        grounds from bidding on that aspect of the project, and will
thus avoid the possibility of unnecessarily deciding a             be restricted in their participation as subcontractors. MBEs
constitutional question.” Harris County Comm’rs Court v.           are, of course, free to bid on, and participate fully in, non-set-
Moore, 420 U.S. 77, 83 (1975).                                     aside as well as set-aside contracts.
  A district court’s denial of a motion to abstain is reviewed       This court ruled in 1983 that the MBEA was constitutional,
by this court de novo. See McDonald v. Village of Northport,       see Ohio Contractors Ass’n v. Keip, 713 F.2d 167 (6th Cir.
Mich., 164 F.3d 964, 967-68 (6th Cir. 1999) (citing                1983), overruling Judge Kinneary’s judgment in the district
Traughber v. Beauchane, 760 F.2d 673, 676 (6th Cir. 1985)          court that Ohio’s scheme was unconstitutional on its face, see
(“Because theories of state and federal law, and expressions       Ohio Contractors Ass’n v. Keip, No. C-2-82-446 (S.D. Oh.
of federalism and comity, are so interrelated in the decision to   Dec. 15, 1982). Subsequently, the Supreme Court, in two
abstain such dispositions are elevated to a level of importance    landmark decisions, explained and applied at length the
dictating de novo appellate review.”)). Abstention is,             criteria of strict scrutiny under which such racially preferential
4    Assoc. Gen’l Contractors,                    No. 98-4393      No. 98-4393                     Assoc. Gen’l Contractors,        13
     et al. v. Drabik, et al.                                                                          et al. v. Drabik, et al.

set-asides were to be evaluated. See City of Richmond v. J.A.      the MBEA. But the MBEA has been in existence for almost
Croson Co., 488 U.S. 469 (1989); Adarand Constructors, Inc.        twenty years, while Croson was decided eleven years, and
v. Pena, 515 U.S. 200 (1995). This court had already, in           Adarand more than four years, ago. Ohio provides no
Michigan Road Builders Ass’n v. Milliken, 834 F.2d 583 (6th        specifics as to the avenues it would pursue to marshal the
Cir. 1987), taken note of the trend developing both in the         statistics it apparently never thought relevant until now.
Supreme Court and Circuit Courts (which was to culminate
in Croson and Adarand) to apply the Equal Protection Clause            The district court found that the supplementation of the
strictly to racial discrimination in government contracting.       state’s existing data which might be offered given a six-
Michigan Road Builders departed from the more relaxed              month’s continuance would not sufficiently enhance the
treatment that Keip had accorded to equal protection               relevance of the evidence to justify the delay. As Appellees
challenges to state contracting disputes. See id. at 598           point out in their Brief at 50-51, under Croson, the state must
(Lively, C.J., dissenting). Croson also noted that same            have had sufficient evidentiary justification for a racially
evolution in this Circuit. See 488 U.S. at 477.                    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
  Ohio’s MBEA was passed after many years, during the              undertake factfinding. See Croson, 488 U.S. at 504 (requiring
1970s, of executive and administrative agency task force           that governmental entities “must identify that discrimination
consideration of complaints regarding, and statistics              . . . with some specificity before they may use race-conscious
concerning, minority group participation in state construction     relief” (emphasis added)).
contracts. These, and the legislative hearings and debates that
immediately preceded passage of the MBEA, are detailed by            The district court also noted that the state had admittedly
Judge Kinneary in his 1982 decision striking down that act.        been lax, to say the least, in maintaining the type of statistics
                                                                   that would be necessary to undergird its affirmative action
  In the light of Croson and Adarand, the district court in this   program. The proper maintenance of current statistics is
case returned to the prescient standards under which the           relevant to the requisite narrow tailoring of such a program,
MBEA had been invalidated in 1982. Reviewing the                   in order to judge its appropriate limits. But, as noted above,
evidence, Judge Graham, at the close of a hearing held on          the state does not even know how many minority-owned
October 26, 1998 to consider the state’s request for a six-        businesses are not certified as MBEs, and how many of them
month continuance (which was denied), cites Judge                  have been successful in obtaining state contracts. The court’s
Kinneary’s 1982 analysis, which anticipated that of Croson,        review of these deficiencies showed a firm grasp of the
with complete approval. Judge Graham found the MBEA                evidence that had been offered. Therefore, it cannot be said
patently unconstitutional: “I am mindful of the fact that it is    that the district court abused its discretion in denying the
certainly unusual for a court to declare a state statute which     motion for a continuance or in consolidating the preliminary
has such far-reaching effects unconstitutional from the bench,     injunction hearing with a trial on the merits pursuant to Fed.
but I cannot imagine any clearer case than this for the            R. Civ. P. 65(a)(2).
unconstitutionality of the state statute.”
                                                                     The district court’s findings of fact, though made from the
  The district court also referred to a 1997 ruling from the       bench, are sufficient to permit this court to weigh the merits
Ohio Court of Appeals on the MBEA. In that case, a business        of the ruling and this appeal; oral findings of fact are
owner of Lebanese descent, who was denied certification as         explicitly contemplated by Fed. R. Civ. P. 52(a). However,
12    Assoc. Gen’l Contractors,                    No. 98-4393      No. 98-4393                   Assoc. Gen’l Contractors,        5
      et al. v. Drabik, et al.                                                                        et al. v. Drabik, et al.

race-based means were considered as alternatives to the goal.       an MBE on the grounds he was not an Oriental, claimed his
See 488 U.S. at 507. Yet, as the district court noted in an         right to equal protection was violated by the MBEA as
opinion written to accompany its denial of a motion to stay its     applied to him. The Court of Appeals affirmed the trial
judgment pending this appeal, the historical record contains        court’s ruling that the MBEA’s per-se race classification is
no evidence “that the Ohio General Assembly gave any                unconstitutional. That ruling has since been overturned by the
consideration to the use of race-neutral means to increase          Ohio Supreme Court, which, in a lengthy review of minority
minority participation in state contracting before resorting to     set-aside jurisprudence, concluded that the MBEA was
race-based quotas.” Associated Gen’l Contractors of Ohio,           constitutional. See Ritchey Produce Co. v. State of Ohio
Inc., et al. v. Drabik, et al., 50 F. Supp. 2d 741, 764 (S.D. Oh.   Dep’t of Administrative Services, 1997 WL 629965 (Ohio
1999).                                                              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,
                               B                                    Ritchey was still pending in the Ohio Supreme Court. Hence,
                                                                    Ohio argued that the district court should have abstained from
   The district court’s denial of a motion for continuance, and     making a decision. A motion to that effect was filed with the
its decision to consolidate the preliminary injunction hearing      district court, which denied it after an extensive consideration
with a hearing on the merits, pursuant to Fed. R. Civ. P.           of abstention doctrine. This appeal also argues that the
65(a)(2), were based on its findings of fact, and its view of the   district court’s denial of the abstention motion was error.
sufficiency of the evidence presented; it deemed the
additional evidence that the state sought time to muster                                           II
unlikely to be relevant. A district court’s determinations of
relevancy are subject to review for abuse of discretion. See                                       A
United States v. Seago, 930 F.2d 482, 494 (6th Cir. 1991).
The denial of a motion for continuance is also reviewed for           “The constitutionality of a statute is a question of law,
abuse of discretion. See United States v. Martin, 740 F.2d          reviewable de novo.” Hadix v. Johnson, 144 F.3d 925, 938
1352, 1360 (6th Cir. 1984) (citing Avery v,. Alabama, 308           (6th Cir. 1998) (citing United States v. Brown, 25 F.3d 307,
U.S. 444 (1940)). “To determine if there has been abuse, we         308 (6th Cir), cert. denied, 513 U.S. 1045 (1994)).
look to see if the defendant suffered any actual prejudice as a
result of the denial, [and] whether additional time would have         Croson reaffirmed the “strict scrutiny” standard of review
produced more witnesses or added something to the                   adopted by the Court for preferential programs based on racial
defendant’s case.” Ibid.                                            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
  We also review for abuse of discretion a district court’s         that such a program be “narrowly tailored” to satisfy a
decision to consolidate a hearing for a preliminary injunction      “compelling governmental interest.” 476 U.S. at 274 (quoting
with a trial on the merits. See, e.g., Berry v. Bean, 796 F.2d      Fullilove v. Klutznik, 448 U.S. 448, 480 (1980) (“narrowly
713, 719 (4th Cir. 1986); Northern Kentucky Chiropractic v.         tailored”); Pallmore v. Sidoti, 466 U.S. 429, 432 (1984)
Ramey, No. 95-5645, 1997 WL 35571, at *2 (6th Cir. Jan. 29,         (“compelling governmental interest”)). Adarand reiterated
1997). The district court, in consolidating the preliminary         this standard for “all racial classifications imposed by
injunction hearing with a trial on the merits, denied the state’s   whatever federal, state, or local governmental actor . . . .” See
request for additional time to gather evidentiary support for       515 U.S. at 227.
6     Assoc. Gen’l Contractors,                     No. 98-4393      No. 98-4393                   Assoc. Gen’l Contractors,      11
      et al. v. Drabik, et al.                                                                         et al. v. Drabik, et al.

   In discussing this issue, it is important to identify precisely   may legitimately ask why they are forced to share this
the compelling state interest that might be able to overcome         ‘remedial relief’ with an Aleut citizen who moves to
the general presumption against racial classification. It is         Richmond tomorrow?” Croson, 488 U.S. at 506.
clear that a government “has a compelling interest in assuring
that public dollars . . . do not serve to finance the evil of           In addition to the foregoing problems, Ohio’s own
private prejudice.” Croson, 488 U.S. at 492. However,                “underutilization” statistics suffer from a fatal conceptual
statistical disparity in the proportion of contracts awarded to      flaw, as the district court noted: they do not report the actual
a particular group, standing alone, does not demonstrate such        use of minority firms; they only report the use of minority
an evil. It is an unfortunate aspect of reality that there is        firms who have gone to the trouble of being certified and
never more than 100% of anything; thus, raising the                  listed among the state’s 1,180 MBEs. While it might be true
percentage allocated to some portion of the total population         that most or all of the relevant firms would have sought to
necessarily means a corresponding reduction in what is               take advantage of the special minority program, there is
available to other portions.                                         simply no examination of whether contracts are being
                                                                     awarded to minority firms who have never sought such
   There is no question that remedying the effects of past           preference, whether from principle, oversight, calculation of
discrimination constitutes a compelling governmental interest.       the worth of the program, or for some other reason, and who
See Croson, 488 U.S. at 503; United Black Firefighters Ass’n         have been awarded contracts in open bidding.
v. City of Akron, 976 F.2d 999, 1010-11 (6th Cir. 1992).
However, to make this showing, a state cannot rely on mere              Narrow tailoring also implies some sensitivity to the
speculation, or legislative pronouncements, of past                  possibility that a program might someday have satisfied its
discrimination. Rather, the Supreme Court has told us that           purposes. As previously noted, a race-based preference
the state bears the burden of demonstrating a “strong basis in       program must be “appropriately limited such that it ‘will not
evidence for its conclusion that remedial action was                 last longer than the discriminatory effects it is designed to
necessary” by proving either that the state itself discriminated     eliminate.’” Adarand, 515 U.S. at 238 (quoting Fullilove v.
in the past or was a passive participant in private industry’s       Klutznick, 448 U.S. 491, 513 (1980)). The district court in
discriminatory practices. Croson, 488 U.S. at 486-92, 500.           this case took note of the outdated character of any evidence
                                                                     that might have been marshaled in support of the MBEA and
  Thus, the linchpin of the Croson analysis, for present             added that even if such data had been sufficient to justify the
purposes, is not simply its mandating of strict scrutiny, the        statute twenty years ago, it would not suffice to continue to
requirement that a program be narrowly tailored to achieve a         justify it forever. During the debate over the bill in 1980, an
compelling government interest, but above all its holding that       amendment had been offered to include a three-year “sunset”
governments must “identify discrimination with some                  provision; this was defeated. The MBEA has remained in
specificity before they may use race-conscious relief;”              effect for twenty years and has no set expiration. This
explicit “findings of a constitutional or statutory violation        despite, at best, marginally adequate evidence of
must be made.” 488 U.S. at 497.                                      discrimination from 1975, 1978, and 1979. As quoted above,
                                                                     supra, at 9, Ohio concedes this deficiency.
  In ruling against the State of Ohio in 1982, Judge Kinneary
had held that the evidence presented by state studies from the         Finally, as mentioned above, one of the factors Croson
middle and latter 1970s was inadequate to support a                  identified as indicative of narrow tailoring is whether non-
10    Assoc. Gen’l Contractors,                     No. 98-4393      No. 98-4393                  Assoc. Gen’l Contractors,       7
      et al. v. Drabik, et al.                                                                        et al. v. Drabik, et al.

  The only cases found to present the necessary “compelling          conclusion of specific historical discrimination calling for
interest” sufficient to “justif[y] a narrowly tailored race-based    remediation, such as might justify the MBEA. More recently,
remedy” are those that expose, as in the case of the Alabama         this court has ruled that seventeen-year old evidence of
Department of Public Safety in 1987, “pervasive, systematic,         discrimination is “too remote to support a finding of
and obstinate discriminatory conduct,” Adarand, 515 U.S. at          compelling government interest to justify the affirmative
237 (citing United States v. Paradise, 480 U.S. 149 (1987)).         action plan,” and struck down a continuing affirmative action
Ohio has made no such showing.                                       program for female firefighters on the ground that outdated
                                                                     evidence does not reflect “prior unremedied or current
   A second and separate hurdle for the MBEA is its failure of       discrimination.” Brunet v. City of Columbus, 1 F.3d 390, 409
narrow tailoring. Adarand teaches that a court called upon to        (6th Cir. 1993), cert. denied, 510 U.S. 1164 (1994). The
address the question of narrow tailoring must ask, “for              MBEA suffers from the same defect.
example, whether there was ‘any consideration of the use of
race-neutral means to increase minority business                       Moreover, Judge Kinneary anticipated Croson’s insistence
participation’ in government contracting, Croson, [488 U.S.]         on explicit findings in the following observation:
at 507 . . . or whether the program was appropriately limited
such that it ‘will not last longer than the discriminatory effects     In all the documentary evidence relating to the progress
it is designed to eliminate,’ Fullilove, [448 U.S.] at 513. . . .”     of [the MBEA] through the legislature, including drafts
Adarand, 515 U.S. at 237-38. A narrowly-tailored set-aside             of bills, Legislative Service Commission summaries, and
program must be “linked to identified discrimination.”                 transcripts of floor debate, there is not one clear,
Croson, 488 U.S. at 507. Its criteria and measures of success          unambiguous statement of a finding of discrimination to
must be particularized, not reduced to rigid quotas driven by          be found.
“simple administrative convenience.” Id. at 508. It must also
not suffer from “overinclusiveness.” Id. at 506.                       When, in 1983, this court overturned Judge Kineary’s
                                                                     ruling in that case, we did so out of deference to the
   To begin with the last-named factor in narrow tailoring           legislature, giving it the benefit of the doubt that implicit
analysis, the MBEA suffers from defects both of over- and            factfinding of discrimination underlay the MBEA. See Keip,
underinclusiveness. By lumping together the groups of                713 F.3d at 170-71. But the Supreme Court has since
Blacks, Native Americans, Hispanics, and Orientals (and              required more. See Miller v. Johnson, 515 U.S. 900, 923
leaving unclear the exact extent of the last two designations),      (1995) (holding legislation adopting racial distinctions to be
the MBEA may well provide preference where there has been            entitled to no deference); Croson, 488 U.S. at 499 (holding
no discrimination, and may not provide relief to groups where        mere assertions of legislative purposes insufficient).
discrimination might have been proven. Thus, the MBEA is
satisfied if contractors of, let us say, Thai origin, who might        Proponents of racially discriminatory systems such as the
never have been seen in Ohio until recently, receive 10% of          MBEA have sought to generate the necessary evidence by a
state contracts, while African-Americans receive none.               variety of means. See, e.g., George Stephanopoulos &
Obviously, other possible examples of this sort can be readily       Christopher Edley, Jr., Affirmative Action Review: Report to
imagined. As the Supreme Court remarked, invalidating                the President (July 19, 1995), repr. in BNA Daily Labor
Richmond’s set-aside program, if it were “‘narrowly tailored’        Report, 139 DLR S-1, 1995. However, such efforts have
to compensate black contractors for past discrimination, one         generally focused on mere “underrepresentation” – a lesser
8     Assoc. Gen’l Contractors,                     No. 98-4393      No. 98-4393                   Assoc. Gen’l Contractors,        9
      et al. v. Drabik, et al.                                                                         et al. v. Drabik, et al.

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