amicus briefs - Pacific Legal Foundation

No. 15-906
In the .
~upreme QCourt of tbt llniteb ~tates
DUNNET BAY CONSTRUCTION COMPANY,
Petitioner,
v.
RANDALL S. BLANKENHORN, Secretary,
Illinois Department of Transportation, et al.,
Respondents.
On Petition for Writ of Certiorari
to the United States Court of Appeals
for the Seventh Circuit
BRIEF AMICUS CURIAE OF
PACIFIC LEGAL FOUNDATION AND
CENTER FOR EQUAL OPPORTUNITY
IN SUPPORT OF PETITIONER
MERIEM L. HUBBARD
RALPH W. KASARDA*
*Counsel of Record
Pacific Legal Foundation
930 G Street
Sacramento, California 95814
Telephone: (916) 419-7111
Facsimile: (916) 419-7747
E-mail: rwk@pacificlegal.org
Counsel for Amici Curiae Pacific Legal Foundation
and Center for Equal Opportunity
1
QUESTIONS PRESENTED
Whether an equal protection challenge to a
state program requiring that a contractor meet
race-conscious subcontracting "goals" for
disadvantaged business enterprises (DBEs) may be
rejected on the ground that the program complies with
applicable federal regulations-without any inquiry
whether the State applied its program in a manner
that violates equal protection.
1.
2. Whether a government program that resorts
to race-conscious measures before implementing
workable, race-neutral alternatives satisfies the
standards for strict scrutiny as reiterated in Fisher v.
Univ. of Texas at Austin, 133 S. Ct. 2411 (2013).
11
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . i
TABLE OF AUTHORITIES .. ...... .. .... . . .. iv
IDENTITY AND
INTEREST OF AMICI CURIAE ..... .. . . . . 1
INTRODUCTION AND
SUMMARY OF THE ARGUMENT ...... ... 3
REASONS FOR
GRANTING THE PETITION . . . . .... . . ... 7
I. THE FAILURE OF THE
SEVENTH CIRCUIT TO APPLY STRICT
SCRUTINY TO A STATE RACE-BASED
DBE PROGRAM CONFLICTS WITH THIS
COURT'S PRECEDENT AND CREATES
A THREE-WAY CIRCUIT SPLIT .......... 7
A. Race-Conscious State
Programs Authorized by
Federal Law Are Not Immune
From Constitutional Scrutiny .......... 7
B. This Court Should Resolve the Split
Among Three Circuits on Whether and
How to Apply Strict Scrutiny to State
Race-Conscious DBE Programs ........ 10
II. THIS COURT SHOULD GRANT THE
PETITION TO ADDRESS RACE-CONSCIOUS
CONTRACT GOALS IMPOSED
WITHOUT REGARD TO WORKABLE
RACE-NEUTRAL ALTERNATIVES ....... 14
111
TABLE OF CONTENTS-Continued
Page
A. This Court's Equal Protection Decisions
Establish That Government Cannot
Implement Race-Conscious Measures
in Place of Reasonable and Workable
Race-Neutral Alternatives ............ 15
B. This Court Should Grant
Certiorari to Determine Whether
a State's Arbitrary Rejection of
Workable, Race-Neutral Measures
Is Incompatible with Fisher's
Narrow Tailoring Requirements ....... 18
CONCLUSION ............................ 21
IV
TABLE OF AUTHORITIES
Page
Cases
Adarand Constructors, Inc. v. Pena,
515 U.S. 200 (1995) ................... passim
Bartlett v. Strickland, 556 U.S. 1 (2009) ........ 17
City of Richmond v. J.A. Croson Co.,
488 U.S. 469 (1989) .. . ................ passim
Danis Clarkco Landfill Co. v.
Clark Cnty. Solid Waste Mgmt. Dz:st.,
653 N.E.2d 646 (Ohio 1995) . . . ............. 20
Dunnet Bay Constr. Co. v. Blankenhorn,
No. 15-906 (U.S. filed Jan. 15, 2016) .......... 6
Dunnet Bay Constr. Co. v.
Borggren,799 F.3d 676
(7th Cir. 2015) . . . . . . . . . . . . . . . 3-5, 7, 10, 13-14
Dunnet Bay Constr. Co. v. Hannig,
No. 10-3051, 2014 WL 552213
(C.D. Ill. Feb. 12, 2014) . . . . . . . . . . . . . 4-5, 18-19
Fisher v. Univ. of Texas at Austin,
133 S. Ct. 2411 (2013) ................. passim
Grutter v. Bollinger,
539 U.S. 306 (2003) ............. 2, 6, 15-17, 19
Hayes v. N. State Law Enforcement Officers Ass'n,
10 F.3d 207 (4th Cir. 1993) .......... . ...... 18
Midwest Fence Corp. v. United States Dep't of
Transp., 84 F. Supp. 3d 705 (N.D. Ill. 2015),
appeal docketed, No. 15-1827
(7th Cir. filed Apr. 17, 2015) ................ 21
v
TABLE OF AUTHORITIES-Continued
Page
Milwaukee Cnty. Pavers Ass'n v. Fiedler,
922 F.2d 419 (7th Cir. 1991) ......... 5, 7, 11, 13
Mountain W. Holding Co., Inc. v. Montana,
No. CV13-49-BLG-DLC, 2014 WL 6686734
(D. Mont. Nov. 26, 2014), appeal docketed,
No. 15-35003 (9th Cir. filed Jan. 6, 2015) . .. .. 21
N. Contracting, Inc. v. Illinois,
4 73 F.3d 715 (7th Cir. 2007) . ....... . ... . .. 4-5
Parents Involved in Cmty. Sch. v. Seattle Sch.
Dist. No. 1, 551 U.S. 701 (2007) ......... 2, 6, 17
Peightal v. Metro. Dade Cnty.,
26 F.3d 1545 (11th Cir. 1994) ............... 16
Schuette v. Coal. to Defend Affirmative Action,
Integration & Immigrant Rights & Fight
for Equality By Any Means Necessary,
134 S. Ct. 1623 (2014) ................... 2, 16
Sherbrooke Turf, Inc. v.
Minnesota Dep't of Transp.,
345 F.3d 964 (8th Cir. 2003) ........... 5, 10-11
United States v. Paradise,
480 U.S. 149 (1987) ................. 12, 14-15
Western States Paving Co., Inc. v.
Wash. State Dep't of Transp.,
407 F.3d 983 (9th Cir. 2005) ........... 5, 12-13
Vl
TABLE OF AUTHORITIES-Continued
Page
Federal Statutes
MAP-21, Pub. L. No. 112-141,
126 Stat. 405 (2012) ... . ................ . .. 3
Safe, Accountable, Flexible, Efficient
Transportation Equity Act: A Legacy for Users,
23 U.S.C. § 101 note, Pub. L. No. 109-59,
119 Stat. 1144 (2005) .. ... . ................ 3
Transportation Equity Act for the Twenty-First
Century (TEA-21), Pub. L. No. 105-178,
112 Stat. 107 (1998) ......... . ............. 3
Federal Regulation
49 C.F.R. § 26.53 ............................ 4
Rules of Court
Sup. Ct. R. 37.2(a) .................. . ........ 1
Sup. Ct. R. 37.6 ............................. 1
Miscellaneous
Amico, Joseph M.,
Affirmative Action in Construction
Contracting and New Jersey's ''Emerging
Small Business Enterprise" Program,
16 Rutgers Race & L. Rev. 79 (2015) . . . . . . 19-20
Goodman, Christine Chambers, Disregarding
Intent: Using Statistical Evidence to
Provide Greater Protection of the Laws,
66 Alb. L. Rev. 633 (2003) ...... . .... . ... .. 20
Vll
TABLE OF AUTHORITIES-Continued
Page
La Noue, George R., Setting Goals in
the Federal Disadvantaged Business
Enterprise Programs, 1 7 Geo. Mason
U. Civ. Rts. L.J. 423 (2007) ................ 20
1
IDENTITY AND
INTEREST OF AMICI CURIAE
Pacific Legal Foundation (PLF) and Center for
Equal Opportunity (CEO) respectfully submit this brief
amicus curiae in support of Petitioner Dunnet Bay
Construction Company. 1
PLF is a non-profit,
tax-exempt corporation organized under the laws of the
State of California for the purpose of engaging in
litigation in matters affecting the public interest. PLF
was founded in 1973 and is widely recognized as the
most experienced non-profit legal foundation of its
kind. PLF litigates cases involving public contracting,
public education, and public employment, arguing in
favor of equal treatment of all individuals, regardless
of race, ethnicity, or gender, and against programs that
grant special preferences to a select few on the basis of
race and sex.
CEO is a non-profit research, education, and
public advocacy organization. CEO devotes significant
time and resources to studying racial, ethnic, and
gender discrimination by the federal government, the
states, and private entities, and educating Americans
about the prevalence of such discrimination. CEO
advocates for the cessation of racial, ethnic, and gender
1
Pursuant to this Court's Rule 37.2(a), all parties have consented
to the filing of this brief. Counsel of record for all parties received
notice at least 10 days prior to the due date of the Amici Curiae's
intention to file this brief. Letters evidencing such consent have
been filed with the Clerk of the Court.
Pursuant to Rule 37.6, Amici Curiae affirm that no counsel for
any party authored this brief in whole or in part, and no counsel
or party made a monetary contribution intended to fund the
preparation or submission of this brief. No person other than
Amici Curiae, their members, or their counsel made a monetary
contribution to its preparation or submission.
2
discrimination by the federal government, the states,
and private entities.
PLF and CEO submit this brief because they
believe their public policy perspective and litigation
experience in the area of racial preferences in public
contracting will provide an additional viewpoint with
respect to the issues presented. Amici have extensive
experience briefing legal issues that arise when the
government classifies individuals on the basis of race.
Of particular relevance to this case, Amici have filed
amicus briefs with this Court in cases concerning
race-based public contracting programs: Adarand
Constructors, Inc. v. Pena, 515 U.S. 200 (1995); and
City of Richmond v. J.A. Croson Co., 488 U.S. 469
(1989). Amici have also participated as amicus curiae
in other seminal cases involving the government's use
of race, such as Schuette v. Coal. to Defend Affirmative
Action, Integration & Immigrant Rights & Fight for
Equality By Any Means Necessary, 134 S. Ct. 1623
(2014); Fisher v. Univ. of Texas at Austin, 133 S. Ct.
2411 (2013); Parents Involved in Cmty. Sch. v. Seattle
Sch. Dist. No. 1, 551 U.S. 701 (2007); and Grutter v.
Bollinger, 539 U.S. 306 (2003) .
Amici believe that America's fundamental
constitutional principles regarding race are based on
individual rights, not group rights. Therefore, to the
extent that any benefits or burdens created by the
government are based on group identity, those benefits
and burdens must be subject to the strictest possible
scrutiny, whether the government actor is at the
federal, state, or local level.
3
INTRODUCTION AND
SUMMARY OF THE ARGUMENT
Compelling reasons exist to justify review in this
case.
This Court commands that "all racial
classifications, imposed by whatever federal, state, or
local governmental actor, must be analyzed by a
reviewing court under strict scrutiny." Adarand, 515
U.S. at 227. The court below disregarded that
command by holding that states' race-based public
contracting programs are immune from such scrutiny
if they are extensions of federal law. Dunnet Bay
Constr. Co. v. Borggren, 799 F.3d 676, 697 (7th Cir.
2015). Not only is the decision contrary to this Court's
precedent, but it also creates a three-way split among
the circuit courts.
The Illinois Department of Transportation (IDOT)
receives and administers federal funds from the United
States Department of Transportation (USDOT) for
highway construction under the Fixing America's
Surface Transportation Act, or FAST Act (Pub. L.
No. 114-94). 2 The FAST Act, like the highway
spending bills before it, authorizes USDOT to delegate
to each state that accepts federal transportation funds
the responsibility for implementing a subcontractor
hiring program, called the Disadvantaged Business
Enterprise (DBE) program. Illinois implements a
race-conscious DBE program that requires a certain
percentage of dollars on federal and state-funded
2
The FAST Act reauthorized MAP-21, Pub. L. No. 112-141, 126
Stat. 405 (2012), which is the successor to the Safe, Accountable,
Flexible, Efficient Transportation Equity Act: A Legacy for Users,
23 U.S.C. § 101 note, Pub. L. No. 109-59, 119 Stat. 1144 (2005),
and the Transportation Equity Act for the Twenty-First Century
(TEA-21), Pub. L. No. 105-178, 112 Stat. 107 (1998).
4
transportation projects to (1) be awarded to
subcontractors on the basis of race, or (2) demonstrate
"good faith efforts" to do so. See Burggren, 799 F.3d
at 679-81 (describing Illinois' DBE program). A
general contractor who fails to document strict
compliance with either of these options is punished by
having his or her bid rejected as nonresponsive, even
if it is the lowest bid. Id. at 680 (citing 49 C.F.R.
§ 26.53).
Petitioner Dunnet Bay Construction Co. (Dunnet
Bay) submitted the lowest bid for a highway
construction contract, but IDOT rejected the bid
because Dunnet Bay did not attain the race-conscious
subcontractor hiring goal. Id. at 683-84. Dunnet Bay
filed an action seeking a declaration that Illinois' DBE
program is unconstitutional for discriminating on the
basis of race, and the district court granted summary
judgment in favor of the state, finding that Dunnet Bay
lacked standing. Dunnet Bay Constr. Co. v. Hannig,
No. 10-3051, 2014 WL 552213, at *30 (C.D. Ill. Feb. 12,
2014), aff'd sub nom., Borggren, 799 F.3d 676. The
court went on to hold that even if Illinois enforced a
no-waiver policy-racial quotas-the state's program
would not violate the Constitution's Equal Protection
Clause. Id. at *31. The court below affirmed the
district court's judgment. Borggren, 799 F.3d at 701.
The Seventh Circuit acknowledged that Illinois'
DBE program employed racial classifications, id.
at 697, but refused to apply strict scrutiny in its
analysis of that program. Instead, it held that the
state was "insulated" from a constitutional challenge
as to whether its program is narrowly tailored to
further a compelling interest, because it was following
federal law. Id. (citing N. Contracting, Inc. v. Illinois,
5
473 F.3d 715, 721 (7th Cir. 2007); Milwaukee Cnty.
Pavers Ass'n v. Fiedler, 922 F.2d 419, 423 (7th Cir.
1991)). The court held that "even if Dunnet Bay has
standing to raise an equal protection claim, IDOT is
entitled to summary judgment." Id. at 696.
The Seventh Circuit decision is at odds with
decisions of this Court and two other circuit courts in
several respects. By refusing to examine Illinois'
race-conscious program under strict scrutiny, the
Seventh Circuit rejects this Court's holding that all
government programs employing racial classifications
are subject to strict scrutiny. Croson, 488 U.S.
at 490-94; Adarand, 515 U.S. at 227. Both the Eighth
and Ninth Circuits employ strict scrutiny when
reviewing state DBE programs in their jurisdictions,
albeit in ways that substantially deviate fromAdarand
and Fisher. Sherbrooke Turf, Inc. v. Minnesota Dep't of
Transp., 345 F.3d 964, 974 (8th Cir. 2003); Western
States Paving Co., Inc. v. Wash. State Dep't of Transp.,
407 F.3d 983, 997-98 (9th Cir. 2005). Thus, review is
needed to resolve this split among three circuit courts
of appeals.
The Seventh Circuit's decision also conflicts with
this Court's command that reviewing courts make a
determination that the implementation of
race-conscious programs satisfy strict scrutiny. Fisher,
133 S. Ct. at 2419. That command is critical here,
where the facts establish that Illinois resorted to
race-conscious contracting goals before implementing
identified, workable, race-neutral alternatives.
Borggren, 799 F.3d at 682; Hannig, 2014 WL 552213,
at *6, *14. The lower court's decision cannot be
squared with this Court's holding that strict scrutiny
is not satisfied when the government merely considers
6
race-neutral alternatives before resorting to the use of
race. Fisher, 133 S. Ct. at 2420. Racial classifications
must only be used as a "last resorL" Lu achieve a
compelling government interest. Parents Involved, 551
U.S. at 735 (quoting Croson, 488 U.S. at 519 (Kennedy,
J., concurring in part and concurring in judgment)). 3
Race-based public contracting programs are
matters of intense public concern and raise significant
constitutional questions that should be settled by this
Court. See Grutter, 539 U.S. at 388 (Kennedy, J.,
dissenting) (A state's "[p]referment by race ... can be
the most divisive of all policies."). Amici urge thiR
Court to grant the petition to resolve the Seventh
Circuit's conflict with this Court's relevant decisions,
and the growing split in the courts of appeals
addressing the constitutionality of race-based public
contracting programs.
3
Petitioner also seeks this Court's review to resolve the clear
conflict among the courts of appeals concerning whether a person
required by the government to racially discriminate against others
has standing to challenge the validity of that requirement, even
though the government does not discriminate against him.
Dunnet Bay Constr. Co. v. Blankenhorn, No. 15-906 (U.S. filed
Jan. 15, 2016) (Petition for Writ of Cert.). Amici agrees with
Petitioner that this Court should grant the petition to hold that
parties forced to participate in government-mandated
discriminatory programs have standing to challenge those
programs.
7
REASONS FOR
GRANTING THE PETITION
I
THE FAILURE OF THE
SEVENTH CIRCUIT TO APPLY STRICT
SCRUTINY TO A STATE RACE-BASED
DBE PROGRAM CONFLICTS WITH THIS
COURT'S PRECEDENT AND CREATES
A THREE-WAY CIRCUIT SPLIT
A. Race-Conscious State
Programs Authorized by
Federal Law Are Not Immune
From Constitutional Scrutiny
Illinois' DBE program employs racial
classifications. Borggren, 799 F.3d at 697. But the
court did not apply strict scrutiny to analyze that
program. Instead, relying on the Seventh Circuit's
pre-Adarand precedent, it held that "[a] state is
insulated from [a constitutional challenge as to
whether its program is narrowly tailored to achieve
this compelling interest], absent a showing that the
state exceeded its federal authority." Id. (citing
Milwaukee Cnty. Pavers Ass'n, 922 F.2d at 423). That
holding fundamentally conflicts with relevant decisions
of this Court, and with decisions of other courts of
appeals on the same important matter.
In Croson andAdarand this Court clearly set out
the level of scrutiny to be applied when determining
the constitutionality of a government-created
affirmative action program under the Equal Protection
Clause. Croson holds that a reviewing court must
apply strict scrutiny for state and local race-based
programs. Croson, 488 U.S. at 490-94. Adarand held
8
that federal programs employing racial classifications
must also be analyzed under strict scrutiny review.
Adarand, 515 U.S. at 227.
In Croson, the city of Richmond adopted a
race-conscious affirmative action plan, which required
prime contractors to subcontract at least thirty percent
of the dollar amount of the contract with
minority-owned businesses. Croson, 488 U.S. at 477.
A prime contractor requested a waiver of the thirty
percent set-aside requirement, the city denied the
request, and the contractor sued to challenge the
constitutionality of the affirmative action plan. Id.
at 483.
This Court held that the plan was
unconstitutional because (1) Richmond failed to
identify specific discrimination within its own
jurisdiction justifying race-conscious relief, id. at 504,
and (2) the city should have considered the use of
alternative race-neutral measures before implementing
a race-based program. Id. at 507. Thus, the city did
not demonstrate that the plan was narrowly tailored to
achieve a compelling state interest. Id. at 508.
In Adarand, this Court held that strict scrutiny
also applies to federal programs employing racial
classifications. Adarand, 515 U.S. at 227. In that
case, a nonminority subcontractor submitted the lowest
bid to the general contractor for a guardrail
subcontract on a USDOT project. Id. at 205. USDOT
was subject to the Surface Transportation and Uniform
Relocation Assistance Act of 1987, which required that
it spend at least ten percent of its funds to contract
with minority-owned businesses. Id. at 208. After its
low bid was rejected, the nonminority subcontractor
challenged the Act as violating the Fifth Amendment's
guarantee of equal protection. This Court reasoned
9
that the Fifth and Fourteenth Amendments protect
persons, not groups. Id. at 227. Therefore, all
government action based on race-a group
classification that is in most cases prohibited-must be
subjected to detailed judicial inquiry to ensure that the
personal right to equal protection of the laws has not
been violated. There is no distinction between racial
discrimination cases brought under either amendment.
Id. Strict scrutiny applies to both.
The Seventh Circuit's position undermines the
holdings of Croson and Adarand, which ensure equal
protection at every level of government. When the
government creates a race-conscious affirmative action
program, this Court's equal protection jurisprudence
requires courts to analyze those racial classifications
under strict scrutiny. The "purpose of strict scrutiny
is to 'smoke out' illegitimate uses of race by assuring
that the legislative body is pursuing a goal important
enough to warrant use of a highly suspect tool."
Croson, 488 U.S. at 493. If strict scrutiny is not
applied, courts have "no way of determining ... what
classifications are in fact motivated by illegitimate
notions of racial inferiority or simple racial politics."
Id.
This Court has never held that racial
classifications, imposed by whatever federal, state, or
local governmental actor, are immune from
constitutional challenge.
The Seventh Circuit
continues to reject this Court's clear precedent.
10
B. This Court Should Resolve the Split
Among Three Circuits on Whether
and How to Apply Strict Scrutiny to
State Race-Conscious DBE Programs
The Seventh Circuit held that a state's race-based
DBE program is not susceptible to constitutional
challenge unless the state exceeds its federal authority
in implementing the program. Borggren, 799 F.3d
at 697. That decision widens an existing three-way
circuit split. Unlike the Seventh Circuit, the Eighth
and Ninth Circuits hold that race-based state DBE
programs are susceptible to constitutional challenges
regardless whether those programs comport with
federal law. However, the Eighth Circuit applies an
improper and incomplete analysis, while the Ninth
Circuit conflates the narrow tailoring and compelling
interest requirements of strict scrutiny. This Court
should grant the petition to hold that state
race-conscious DBE programs are subject to
constitutional challenge, and provide guidance on how
strict scrutiny should be applied.
The Eighth Circuit rejects the Seventh Circuit's
holding that strict scrutiny should not be applied to
state programs that follow federal regulations. In
Sherbrooke Turf, the Eighth Circuit applied strict
scrutiny to state DBE programs from Minnesota and
Nebraska in challenges brought by nonminority
subcontractors. 345 F.3d at 967. Both plaintiffs
alleged that the federal DBE program, as applied in
their respective states, violated equal protection under
the Fifth Amendment. Id. at 969. The Eighth Circuit
allowed the states to adopt Congress's compelling
interest in remedying the effects of racial
discrimination as authority for implementing a DBE
11
program. Id. at 970-71. But the court rejected the
Seventh Circuit's position that a contractor could not
challenge a state's racially preferential program for
"merely complying with federal law." Id. at 970 (citing
Milwaukee Cnty. Pavers Ass'n, 922 F.2d at 423). The
court held that a valid race-based DBE program must
be narrowly tailored, and to be narrowly tailored, it
had to be limited to those parts of the country where
its race-based measures were demonstrably needed.
Id. at 971. To the extent the federal government
delegates to states the authority for implementing a
DBE program, a state's implementation becomes
critically relevant to a reviewing court's strict scrutiny.
Id.
The Eighth Circuit's decision in Sherbrooke Turf
demonstrates that further guidance from this Court is
necessary with respect to the proper review of
race-based programs. First, Sherbrooke Turf places
the burden to establish that the DBE programs were
not narrowly tailored on the nonminority
subcontractors, id. at 971, 974, rather than the
government. But see Fisher, 133 S. Ct. at 2420
(making clear that government has the "ultimate
burden" to prove its program is narrowly tailored).
Second, the Eighth Circuit limited its narrow tailoring
analysis to the federal regulations implementing the
nationwide DBE program, rather than the specific
race-conscious programs implemented by Minnesota
and Nebraska. Sherbrooke Turf, 345 F.3d at 971-72.
In Fisher, this Court stressed that reviewing courts
must determine whether race-conscious programs meet
strict scrutiny in their implementation. Fisher, 133 S.
Ct. at 2419.
12
The Seventh Circuit's decision conflicts with the
Ninth Circuit's review of Washington's DBE program
in Western States. In Western States, the Ninth Circuit
considered a nonminority subcontractor's challenge to
Washington's DBE program under the Fifth and
Fourteenth Amendments. Western States, 407 F.3d
at 987. Unlike the Seventh Circuit, the Ninth Circuit
determined that it must follow Croson andAdarand by
applying strict scrutiny to the state's race-conscious
program. Id. at 990-91. Although the Ninth Circuit
referenced the narrow tailoring factors in United States
v. Paradise, 480 U.S. 149, 171 (1987), it did not analyze
those factors with regard to Washington's program.
Instead, it focused on whether the state had evidence
of discrimination in its transportation contracting
industry, Western States, 407 F.3d at 997-98, and
whether race-conscious relief was "limited to those
minority groups that have actually suffered
discrimination." Id. at 998. Finding the evidentiary
record "devoid of any evidence suggesting that
minorities currently suffer-or have ever suffereddiscrimination in the Washington transportation
contracting industry," the court held that Washington's
DBE program conflicted with the guarantees of equal
protection. Id. at 1002.
Had the Seventh Circuit been faced with a
challenge to a race-conscious DBE program similar to
the unconstitutional program analyzed in Western
States, the outcome would have been very different
from that of the Ninth Circuit. In Western States,
Washington's DBE program did not deviate, but
"closely track[ed] with the sample DBE program
developed by the USDOT." Id. at 999. The state
argued that its DBE program was constitutional
because it conformed with the federal statute and
13
regulations. Id. at 996; see id. at 996 n. 7 (court
acknowledged there was no dispute that Washington's
DBE program complied with the federal program's
requirements). Despite Washington's compliance with
the federal DBE regulations, the Ninth Circuit held
that it was necessary to inquire as to whether
Washington's DBE program was narrowly tailored. Id.
at 997. The court applied its understanding of strict
scrutiny to Washington's program and invalidated it.
In the Seventh Circuit, the program would have been
immunized from attack as the court held below: "'If
the state does exactly what the statute expects it to
do ... we do not see how the state can be thought to
have violated the Constitution."' Borggren, 799 F.3d
at 697 (quoting Milwaukee Cnty. Pavers Ass'n, 922
F.2d at 423).
The law on state DBE programs is inconsistent,
as evidenced by decisions of the Seventh, Eighth, and
Ninth Circuit courts. And the decisions of those courts
are inconsistent with this Court's equal protection
jurisprudence. This Court should clarify that state
DBE programs are not immune from constitutional
challenge, and must be subject to the strict scrutiny
analysis set out in Croson and Adarand. To comply
with this standard, states must exhibit a compelling
interest separate from that of Congress, by identifying
their own pattern of discrimination before
implementing a race-conscious program.
"When
race-based action is necessary to further a compelling
interest, such action is within constitutional
constraints ifit satisfies the 'narrow tailoring' test this
Court has set out in previous cases." Adarand, 515
U.S. at 237. Accordingly, the narrow tailoring aspect
of strict scrutiny must include consideration of at least
six factors in relation to the state's program: (1) the
14
necessity of relief; (2) the efficacy of alternative,
race-neutral remedies; (3) the flexibility of relief,
including the availability of waiver provisions; (4) the
relationship of the stated numerical goals to the
relevant market; (5) the impact of relief on the rights
of third parties; and (6) the overinclusiveness or
underinclusiveness of the racial classification.
Adarand, 515 U.S. at 238-39; Croson, 488 U.S. at 506;
Paradise, 480 U.S. at 171.
Only this Court can resolve the substantial
differences between the three courts of appeals
attempting to enforce the Constitution's guarantee of
equal protection. The petition should be granted so
that this Court can establish a nationwide analytical
framework for all reviewing courts to follow when
hearing constitutional challenges to state race-based
programs implementing federal law.
II
THIS COURT SHOULD GRANT THE
PETITION TO ADDRESS RACE-CONSCIOUS
CONTRACT GOALS IMPOSED
WITHOUT REGARD TO WORKABLE
RACE-NEUTRAL ALTERNATIVES
The lower court's equal protection analysis was
limited to determining whether Illinois exceeded its
authority under federal law. Borggren, 799 F.3d
at 697. The court was aware that IDOT had canceled
race-neutral contracting opportunities worth millions
of dollars, and replaced them with race-conscious goals
to maximize the hiring of subcontractors by race and
sex. Id. at 679, 682. Yet it failed to make any inquiry
into whether the state's race-conscious subcontractor
attainment goals were narrowly tailored to serve a
15
compelling governmental interest. In effect, the
Seventh Circuit condones Illinois' practice of using
race-conscious contract goals as a first resort, contrary
this Court's decisions.
A. This Court's Equal Protection
Decisions Establish That Government
Cannot Implement Race-Conscious
Measures in Place of Reasonable and
Workable Race-Neutral Alternatives
This Court's guidance on reviewing race-conscious
public contracting programs, like IDOT's DBE
program, has largely been established in three cases:
Croson, Grutter, and Fisher. These cases illustrate the
requirement that, before turning to racial preferences,
government must prove that the effects of
discrimination cannot be remedied by race-neutral
measures.
In Croson, the City of Richmond's minority
business enterprise program was not narrowly
tailored, in part, because the City failed to consider any
race-neutral alternatives before imposing
race-conscious goals on Richmond's public construction
contracts. See 488 U.S. at 507. For this reason, it was
unnecessary for this Court to discuss in detail the kind
of consideration that government must give to
race-neutral measures before turning to race-conscious
ones. But in Croson, unlike Paradise, the Court
imposed the requirement of considering race-neutral
alternatives on the government, rather than merely
placing that burden on the courts. Compare Croson,
488 U.S. at 507 (finding no evidence in this record that
the government considered race-neutral alternatives),
with Paradise, 480 U.S. 199 (faulting the district court
for not considering several alternatives to a
16
race-conscious consent decree). In other words, the
government's failure to consider race-neutral
alternatives became a narrow tailoring requirement.
Some courts interpreted Croson to require that
governments merely "consider" race-neutral
alternatives-but not exhaust them-before
implementing race-conscious remedies. See Peightal v.
Metro. Dade Cnty., 26 F.3d 1545, 1557 (11th Cir. 1994)
(An initial narrow tailoring inquiry is whether the
government "considered the use of race-neutral
means."); see also Adarand, 515 U.S. at 237
(remanding with instructions that courts of appeals
consider "whether there was 'any consideration of the
use of race-neutral means"').
In Grutter, this Court provided clearer guidance to
both courts and the government. First, although the
Court ultimately approved the use of race by the
University of Michigan Law School, it did so only after
holding that narrow tailoring requires "serious, good
faith consideration of workable race-neutral
alternatives." 539 U.S. at 339. In other words, before
the government may use race, it must rigorously
evaluate appropriate race-neutral policies to determine
the extent to which they would remedy the effects of
past discrimination. Second, the Court announced its
expectation that racial classifications will not be
necessary by the year 2028 (12 years from now). See
id. at 343 ("We expect that 25 years from now, the use
of racial preferences will no longer be necessary to
further the interest approved today."); see also
Schuette, 134 S. Ct. at 1639 (Scalia, J., concurring)
(anticipating that "Grutter's bell may soon toll").
Accordingly, this Court mapped out a transition from
race-conscious to race-neutral policies, holding that
17
public universities "can and should draw on the most
promising aspects of ... race-neutral alternatives."
539 U.S. at 342.
This Court again stressed the importance of
race-neutral alternatives in Parents Involved. There
the Court considered whether a school district violates
the Equal Protection Clause by using race as a factor
in determining student placements in public high
schools. 551 U.S. at 709. Because the use of race was
not narrowly tailored to achieve the school district's
stated goals, the Court held that the plan was
unconstitutional. Id. at 711. The Court reasoned that
racial classifications must be used only as a "last
resort" to achieve a compelling government interest,
and that the district did not satisfactorily consider
race-neutral alternatives in "good faith." Id. at 735
(quoting Croson, 488 U.S. at 519 (Kennedy, J.,
concurring in part and concurring in judgment));
Parents Involved, 551 U.S. at 735 (quoting Grutter, 539
U.S. at 339). This Court reiterated that "racial
classifications are permitted only 'as a last resort'" in
Bartlett v. Strickland, 556 U.S. 1, 21 (2009) (quoting
Croson, 488 U.S. at 519 (Kennedy, J., concurring in
part and concurring in judgment)).
Fisher continued the trajectory away from
race-based governmental decisionmaking, emphasizing
that strict scrutiny imposes on government "the
ultimate burden of demonstrating, before turning to
racial classifications, that available, workable
race-neutral alternatives do not suffice." 133 S. Ct.
at 2420. Government must still consider the use of
racial-neutral alternatives, before resorting to the use
of race, but consideration alone "is not sufficient to
satisfy strict scrutiny." Id.
18
B. This Court Should Grant
Certiorari to Determine Whether
a State's Arbitrary Rejection of
Workable, Race-Neutral Measures
Is Incompatible with Fisher's
Narrow Tailoring Requirements
The decision of the court below is incompatible
with Fisher, because it prevents courts within its
jurisdiction from making determinations on the
efficacy of alternative, race-neutral remedies when
reviewing race-based contracting programs. Under
Fisher, the Seventh Circuit was obligated to make a
"careful judicial inquiry" into whether Illinois could
achieve sufficient DBE participation without resorting
to racial preferences. See Fisher, 133 S. Ct. at 2420
(explaining that narrow tailoring requires the
government to verify that it is "necessary" for the
government to use race to further a compelling
interest); Hayes v. N. State Law Enforcement Officers
Ass'n, 10 F.3d 207, 217 (4th Cir. 1993) ("The essence of
the 'narrowly tailored' inquiry is the notion that
explicit racial preferences .. must be only a 'last
resort' option.").
That requirement was patently obvious here
where the court was aware that Illinois rejected
available, workable race-neutral measures in favor of
racial preferences. The court found that IDOT planned
to put out bids for a construction project known as the
Eisenhower Expressway-the relevant project in this
as-applied challenge. Hannig, 2014 WL 552213, at *5.
Initially, consistent with its duty to maximize DBE
participation through race-neutral means, IDOT
reserved $7 million worth of work from the four main
Eisenhower contracts to create Small Business
19
Initiative projects. Id. at *6. The Small Business
Initiative projects are small contracts that allow small
businesses to submit bids as a general contractor
rather than as a subcontractor. Id. The program is a
race-neutral measure open to contractors of all
races-DBEs and non-DBEs. Id.
Illinois cannot prove that these workable,
race-neutral measures failed to remedy the effects of
identified discrimination, because it never used them.
Before bids were received on the Eisenhower
Expressway project, IDOT learned that the Illinois
governor was dissatisfied with the race-conscious DBE
goals set on the project, so IDOT withdrew the
invitation to bid. Id. at *5. IDOT then increased the
race-conscious goals, mainly by eliminating the
race-neutral Small Business Initiative contracts from
the Eisenhower Expressway project and converting
them into race-conscious DBE subcontract goals. Id.
at *14. As part of the court's narrow tailoring analysis,
the court should have required Illinois to prove that it
was "necessary" to replace the race-neutral Small
Business Initiative contracts with race-conscious DBE
contract goals. See Fisher, 133 S. Ct. at 2420 (courts
must verify that racial classifications are "necessary").
In Grutter, this Court ordered states to draw on
the most promising aspects of race-neutral measures
that other states have developed to replace the use of
race in college admissions. Grutter, 539 U.S. at 342.
That charge is equally applicable in the context of
public contracting. For instance, to supplement its
DBE program, New Jersey implements contracting
goals for economically disadvantaged contractors of all
races and sex. Joseph M. Amico, Affirmative Action in
Construction Contracting and New Jersey's ''Emerging
20
Small Business Enterprise" Program, 16 Rutgers Race
& L. Rev. 79, 104-05 (2015). Through its Emerging
Small Business Enterprise program, New Jersey meets
almost all of its DBE goals through a race-and
sex-neutral program. Id. at 105. As part of its narrow
tailoring analysis, the court below should have
questioned why Illinois has not implemented a similar
program. See George R. La N oue, Setting Goals in the
Federal Disadvantaged Business Enterprise Programs,
17 Geo. Mason U. Civ. Rts. L.J. 423, 4 72 (2007) (the
entire federal DBE program could become a
race-neutral program if US DOT simply eliminated the
race and gender presumptions).
In 2016, race-neutral measures should always be
sufficient to remedy discrimination in public
contracting.
Nondiscrimination can be assured
through greater transparency-that is, by widely
publicizing bidding opportunities and the terms of
awarded contracts.
This process protects the
government and bidders from charges of
discrimination, fraud, or collusion. Danis Clarkco
Landfill Co. v. Clark Cnty. Solid Waste Mgmt. Dist.,
653 N.E.2d 646, 656 (Ohio 1995). Availing the
subcontracting process to public competitive bidding as
a race-neutral alternative to state-imposed DBE
subcontracting goals would likewise remedy and
eliminate discrimination by prime contractors. See
Christine Chambers Goodman, Disregarding Intent:
Using Statistical Evidence to Provide Greater
Protection of the Laws, 66 Alb. L. Rev. 633, 691 (2003)
(discussing measures to remedy discrimination without
violating competitive bidding laws).
The court below refused to follow this Court's
commands in Fisher, by failing to make a careful
21
inquiry into whether Illinois could achieve sufficient
DBE participation without resorting to racial
preferences. Fisher, 133 S. Ct. at 2420. Review by this
Court is necessary to ensure that all courts of appeals
apply the proper strict scrutiny standard when
analyzing challenges to state DBE programs, and
determine whether race-based measures have become
obsolete. 4
CONCLUSION
For the foregoing reasons, the petition for a writ
of certiorari should be granted.
DATED: February, 2016.
Respectfully submitted,
MERIEM L. HUBBARD
RALPH W. KASARDA *
*Counsel of Record
Pacific Legal Foundation
930 G Street
Sacramento, California 95814
Telephone: (916) 419-7111
Facsimile: (916) 419-7747
E-mail: rwk@pacificlegal.org
Counsel for Amici Curiae Pacific Legal Foundation
and Center for Equal Opportunity
4
Two additional challenges to state DBE programs are currently
docketed in courts of appeals: Midwest Fence Corp. v. United
States Dep't of Transp., 84 F. Supp. 3d 705, 715 (N.D. Ill. 2015),
appeal docketed, No. 15-1827 (7th Cir. filed Apr. 17, 2015); and
Mountain W. Holding Co., Inc. v. Montana, No. CV13-49-BLGDLC, 2014 WL 6686734 (D. Mont. Nov. 26, 2014), appeal docketed,
No. 15-35003 (9th Cir. filed Jan. 6, 2015). This Court should grant
the petition to ensure that the programs at issue in these cases are
analyzed by the different courts in a consistent manner.