SACRAMENTO – A California-based legal foundation is urging the U.S. Supreme Court to review a Chicago contractor’s claim that losing a state contract because he did not hire enough minorities violated his constitutional rights.
An opinion on this case by the nation’s highest court could resolve discrepancies in how federal appellate courts have been interpreting laws pertaining to disadvantaged business enterprise programs across the country, Meriem Hubbard, an attorney at the Pacific Legal Foundation, told the Northern California Record.
Pacific Legal Foundation and the Center for Equal Opportunity jointly filed an amicus, or friend of the court, brief asking the Supreme Court grant Dunnet Bay Construction Co.’s petition for a review of lower court rulings on its lawsuit against the Illinois Department of Transportation.
“An amicus brief probably is more important to the Supreme Court for petitions than for oral arguments because it lets them know who the case affects and how important it is to real people,” Hubbard said, adding that the Dunnet case is one of several challenges to state programs with racial preferences.
In 2010, Dunnet Bay Construction Co. alleged that IDOT's Disadvantaged Business Enterprise (DBE) Program discriminated on the basis of race. Illinois implements a program that requires a certain percentage of dollars on federal and state-funded transportation projects must be awarded to racial minorities.
In this case, the company’s bid on a resurfacing project for a portion of interstate known as the Eisenhower Expressway was rejected because Dunnet Bay did not meet the required minority participation goal of 22 percent.
Under IDOT's DBE program, if a bidder fails to meet the DBE contract goal, then it may request a modification of the goal and provide documentation of its good faith efforts to meet the goal. These requests for modification are also known as “waivers.” On this particular project, no waivers were permitted.
Dunnet Bay argued that the 22 percent DBE goal was arbitrary and capricious and that IDOT had an unwritten policy not to issue waivers regardless of whether contractors made good faith efforts to meet the DBE goal. Both the federal district court and the 7th Circuit Court of Appeals ruled in the state’s favor.
“Some courts say that it is the responsibility of a person challenging the law to provide evidence that they attempted to meet the preference program goals. But we believe it is the government’s responsibility, federal or state, to produce the evidence that other ways to achieve minority participation did not work,” Hubbard said.
That is referred to as “strict scrutiny.” As Hubbard explained, government must have a compelling interest and must have narrowly tailored the law to achieve that interest. She said the 6th Circuit, 7th Circuit and 8th Circuit appellate courts have held differing views on strict scrutiny related to race-conscious subcontractor hiring goals.
“It is not entirely clear in all courts on how to apply strict scrutiny. For example, one opinion held that there has to have been some evidence of past discrimination before the state can adopt preferences,” Hubbard said.
There are two other challenges to state DBE programs currently pending in courts of appeals. By reviewing the Dunnet Bay case, the Supreme Court could ensure that the DBE programs at issue in those cases are analyzed in a consistent manner.
In the brief, the Pacific Legal Foundation argued that all government programs that all government programs employing racial classifications are subject to strict scrutiny.
A decision from the Supreme Court on the petition for review is expected in July.