U.S. Commission on Civil Rights Challenges Equal Opportunity

August 4, 2008

During its public meeting on July 28, 2008 the majority of the U.S. Commission on Civil Rights (“USCCR”) voted positively on an action that, if successful, will greatly undermine state Department of Transportation Disadvantaged Business Enterprise (“DOT DBE”) programs. Specifically, the majority approved a letter to President Bush requesting that the Ninth Circuit Court of Appeal’s decision in the Western States Paving Co. case be applied to all DOT DBE programs throughout the country. Read below to see what results this would present.

WHAT DID THE NINTH CIRCUIT DECIDE IN THE WESTERN STATES CASE?

* The court agreed with the District Court that Washington State did not need to establish a compelling need for its DBE program, independent of the determinations that Congress made on a national basis.

* However, the court said that race conscious elements of a national program, to be narrowly tailored as applied, must be limited to those parts of the country where its race-based measures are demonstrably needed.

* Whether race-based measures are needed depends on the presence or absence of discrimination or its effects in a state’s transportation contracting industry.

* In addition, even when discrimination is present in a state, a program is narrowly tailored only if its application is limited to those specific groups that have actually suffered discrimination or its effects.

* The court concluded that Washington State DOT’s DBE program was not narrowly tailored because the evidence of discrimination supporting its application was inadequate. The court mentioned several ways in which the state’s evidence was insufficient:

+ Washington State DOT had not conducted statistical studies to establish the existence of discrimination in the highway contracting industry that were completed or valid.

+ Washington State DOT’s calculation of the capacity of DBEs to do work was flawed because it failed to take into account the effects of past race-conscious programs on current DBE participation

+ The disparity between DBE participation on contracts with and without affirmative action components did not provide any evidence of discrimination.

+ A small disparity between the proportion of DBE firms in the state and the percentage of funds awarded to DBEs in race-neutral contracts (2.7% in the case of Washington State DOT) was entitled to little weight as evidence of discrimination, because it did not account for other factors that may affect the relative capacity of DBEs to undertake contracting work.

+ This small statistical disparity is not enough, standing alone, to demonstrate the existence of discrimination. To demonstrate discrimination, a larger disparity would be needed.

+ Washington State DOT did not present any anecdotal evidence of discrimination.

+ The affidavits required by 49 CFR 26.67(a), in which DBEs certify that they are socially and economically disadvantaged, are not evidence of the presence of discrimination.

* Consequently, the court found that the Washington State DOT DBE program was unconstitutional as applied.

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