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Pages 65-67

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From page 65...
... Suppose that racial discrimination was ingrained in the state highway construction market. As a result, few minority construction employees are given the opportunity to gain managerial experience in the business; minorities who do end up starting construction firms are denied the opportunity to work as subcontractors for nonminority prime contractors; and nonminority prime contractors place pressure on unions not to work with minority firms and on bonding companies and banks to prevent minority-owned construction firms from securing bonding and capital.
From page 66...
... here isn't data in any database that tells you what all those qualifications could be."211 To the best of our knowledge, no plaintiff's expert has ever introduced statistical evidence demonstrating that accounting for "qualifications" or "capacity" explains away large and statistically significant disparities facing minority-owned or women-owned firms. Fifth, although it is true that some disparity studies have not controlled for factors such as "capacity" or "qualifications" or "willingness," it is not necessarily their obligation to do so.
From page 67...
... . Moreover, as the Tenth Circuit Court of Appeals observed in Adarand VII, there is no credible evidence that minority contractors who have been hired under [race-conscious contracting]


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