The term disparity/availability study is not defined by statute, and although the most current federal regulations provide airport owners and operators with an annual DBE goal setting methodology, the USDOT does not provide guidelines or standards on the specific elements of a disparity/availability study to support race-conscious factors of a program.  However, in response to questions raised after the Western Paving decision, the DOT General Counsel approved Q & A guidelines for recipients of federal financial assistance from the Federal Highway Administration (FHWA), Federal Transit Administration (FTA), and Federal Aviation Administration (FAA) located in the states comprising the 9^th federal judicial circuit, that generally describe a disparity/availability study as an evidence/gathering process to determine the existence of discrimination or its effects in a federal grant recipient’s market.[1]  A variation of this description has been used by states in other judicial circuits in developing local DBE race-conscious programs.

            There is concern in the airport industry that these studies can be quite expensive. Since the success of the DBE program may depend on the validity of the disparity study, airport officials need to know what a disparity study should contain to increase the likelihood of withstanding a court challenge. General guidelines are needed not only to develop a scope of work to set parameters for the study, but also to develop quality controls to ensure that the study meets its purpose within state budgetary limits. The purpose of this survey is to determine when a DBE disparity/availability study is needed and elements of a disparity/availability study that may be used by airport attorneys, directors, commissioners, concessionaires; and other businesses that are eligible to participate in federal airport DBE programs in compliance with the USDOT airport DBE goal setting regulations.

            This effort should begin with a thorough review of the airport DBE goal-setting regulations and the historic development of relevant federal case precedent and their effect on airport DBE programs. The survey should then collect completed disparity/availability studies from various areas of the country and identify those that could be used as models in whole or in part.   The criteria for determining whether a study should be modeled/sampled should include whether the study withstood in a court challenge or an administrative review of a DBE race conscious program.  A detailed analysis of the costs associated with disparity/availability studies should be conducted with the objective of developing a comparison of various types of studies against their associated costs.   This research also should include developments in airport DBE enforcement actions taken by state, federal, and local government agencies and the private sector.

            The goal of this project is to provide airports with a clear understanding of the current requirements needed to conduct a valid and legally defensible disparity/availability study and to develop elements of successful disparity/availability studies that can be used in the future.

Status: This project has been terminated.