Adarand v. Mineta Brief of Senator Max Baucus, et al., Amici Curiae in Support of Affirmance of the Tenth Circuit Court of Appeals

    No. 00-730

i n  tfje
S u p re m e  C o u rt of tJje U n ite b  S ta te s

Adarand Constructors, Inc .,
P etitio n er ,

v.
Norman Y. Mineta , Secretary of the 

U nited  States Department of Transportation,
ETAL.,

Respondents.

On Writ  of Certiorari to 
the United  States Court of Appeals 

for the Tenth  Circuit

BRIEF OF SENATOR MAX BAUCUS, ET AL., 
AMICI CURIAE

IN SUPPORT OF AFFIRMANCE OF 
THE TENTH CIRCUIT COURT OF APPEALS

E dward W. Co r r eia *
J. Scott Ba llen g er  
Christo ph er  J. Stew a rt  
Latham & Watkins 
555 Eleventh Street, N.W. 
Suite 1000
Washington, D.C. 20004 
(202) 637-2200
Attorneys for Amici Curiae 

*Counsel of Record 

August 10,2001



QUESTIONS PRESENTED

Whether the Court of Appeals misapplied 
the strict scrutiny standard in determining 
if Congress had a compelling interest to 
enact legislation designed to remedy the 
effects of racial discrimination.

Whether the United States Department of 
Transportation’s current Disadvantaged 
Business Enterprise program is narrowly 
tailored to serve a compelling 
governmental interest.



TABLE OF CONTENTS

TABLE OF CONTENTS...........................................   ii
TABLE OF AUTHORITIES.... ......................................... iv
INTEREST OF AMICI CURIAE........................................1
SUMMARY OF THE ARGUMENT ............................ ........2

ARGUMENT....................  4
I. CONGRESS HAS A COMPELLING 

INTEREST IN REMEDYING 
DISCRIMINATION IN GOVERNMENT 
CONTRACTING ..............   4
A. Because Congress Legislates At A National 

Level, The Evidence It Considers Is
National In Scope.................................................... ...5

B. Strict Scrutiny Does Not Require This 
Court To Abandon Its Traditional Respect
For Congress’ Factual Findings...................................8

C. Strict Scrutiny Does Not Limit Congress To 
Considering Only A Narrow, Particular
Class Of Evidence............................................   10

D. Congress Had A Strong Basis in Evidence 
For Concluding That Construction 
Contracts Were Affected by Race And
Gender Discrimination..............................................13
1. Congress Has Gathered Compelling

Evidence Of Discrimination..................... ....13

2. Petitioner’s Brief Misstates The
Nature And Scope Of The Evidence 
Considered By Congress.................  16



Il l

II, THE STATUTES AT ISSUE IN THIS CASE 
ARE NARROWLY TAILORED TO 
FURTHER THE COMPELLING INTEREST 
IDENTIFIED BY CONGRESS..................................21
A. Congress Can Leave Details Of 

Implementation To Executive Branch
Agencies......... ...................... ............................ .....21

B. The Statutory Goals Are Narrowly Tailored......... 22
C. The Race and Gender-Conscious

Presumptions Are Narrowly Tailored .....................24
1. Congress Reasonably Concluded

That A Presumption Is Necessary.......... .....25
2. The Presumption Can Be Applied In

A Constitutional Way......... ........    27
CONCLUSION.........................................................   30



IV

TABLE OF AUTHORITIES 

CASES

Abrams v. Johnson,
521 U.S. 74 (1997).................. ................•....... .........12

Adarand Constructors, Inc. v. Pena,
965 F. Supp. 1556 (D. Colo. 1997)..................... .......13

Adarand Constructors, Inc. v. Pena,
515 U.S. 200 (1995)..............................   passim

Adarand Constructors, Inc. v. Slater,
228 F.3d 1174 (10th Cir. 2000)...................... 16,18,25

Board of Trustees of the Univ. of Alabama v.
Garrett,
121 S. Ct. 955 (2001)......................... .........................9

Bush v. Vera,
517 U.S. 952(1996).............   12

Chevron U.S.A Inc. v. Natural Resource Defense 
Council, Inc.,
467 U.S. 837 (1984)................................................... 28

City ofBoeme v. Flores,
521 U.S. 507(1997)........................................-........... 9

City of Richmond v. J .A  Croson Co.,
488 U.S. 469 (1989)...................... ..............-....passim



V

Florida Bar v. Went For It, Inc.,
515 U.S. 618 (1995)...................................................... 12

Fullilove v. Klutznick,
448 U.S. 448 (1980)....................  'passim

Katzenbach v. Morgan,
384 U.S. 641 (1966)........................................................9

Local No. 93, Int’lA ss’n of Firefighters v. City of 
Cleveland,
478 U.S. 501 (1986).................................................. ...26

Nixon v. Shrink Missouri Government PAC,
528 U.S. 377(2000)................................................11, 12

Oregon v. Mitchell,
400 U.S. 112 (1970)........................................................ 7

South Carolina v. Katzenbach,
386 U.S. 301 (1966)........................................................9

St. Mary’s Honor Center v. Hicks,
509 U.S. 502(1993)......................................................26

Turner Broadcasting System v. FCC,
520 U.S. 180(1997).............................   11

United States v. Mead Corp.,
121 S. Ct. 2164 (2001)............................................28, 29

United States v. Shimer,
367 U.S. 374(1961).........................   28



VI

Wygant v. Jackson Board of Education,
476 U.S. 267 (1986)......... ......................................... 13

STATUTES

13 C.F.R. § 124.1002 (2000)...................... ............ ......... 27, 28
13 C.F.R. § 124.1008 (2000)......... .................................. 27, 28
13 C.F.R. § 124.1016 (2000)..................................................27
13 C.F.R. § 124.1017 (2000)..................................................27
48 C.F.R. § 19.703 (2000)........................................ ............. 27
49 C.F.R. § 26.15 (2000)......       24
49 C.F.R. § 26.41 (2000)........................................................ 23
49 C.F.R. § 26.43 (2000).......................       24
49 C.F.R. § 26.45 (2000)........................................................ 23
49 C.F.R. § 26.47 (2000)........       24
49 C.F.R. § 26.51 (2000)........................................................ 24
49 C.F.R. § 26.61 (2000)...........    28
49 C.F.R. § 26.67 (2000)..................................................27, 28
49 C.F.R. § 26.83 (2000)........................................................ 27
49 C.F.R. § 26.87 (2000)..............   27

Intermodal Surface Transportation Efficiency Act of 
1991,
Pub. L. 102-240,105 Stat. 1919................................. 23

Public Works Employment Act of 1977,
Pub. L. 95-28, 91 Stat. 116................................. 14,15

Transportation Equity Act for the 21st Century, 
Pub. L. 105-178,112 Stat. 107 (1998)...... . 17, 23,29



V ll

LEGISLATIVE HISTORY

144 Cong. Rec. H2001 (Apr. 1, 1998)................................. .24
144 Cong. Rec. H2003 (Apr. 1,1998).................................. 24
144 Cong. Rec. H2004 (Apr. 1,1998).................................. 24
144 Cong. Rec. H2006 (Apr. 1,1998)..........      18
144 Cong. Rec. H2008 (Apr. 1,1998).................................. 24
144 Cong. Rec. H2009 (Apr. 1,1998)........  24
144 Cong. Rec. H2010 (Apr. 1,1998) ...................... 18, 24
144 Cong. Rec. H2011 (Apr. 1,1998) ............................18, 24
144 Cong. Rec. H3957 (May 2,1998)...................   19
144 Cong. Rec. H3958 (May 2,1998)............     19
144 Cong. Rec. H3959 (May 2,1998).....................................19
144 Cong. Rec. H3960 (May 2,1998).....................................19

144 Cong. Rec. S1401 (Mar. 5,1998).......................... 9,17,24
144 Cong. Rec. S1402 (Mar. 5,1998).......................... 9,24,29
144 Cong. Rec. S1403 (Mar. 5,1998)...................................... 9
144 Cong. Rec. S1404 (Mar. 5,1998).... ............................9,17
144 Cong. Rec. S1408 (Mar. 5,1998).................................9,24
144 Cong. Rec. S1409 (Mar. 5,1998).................... ............9,17
144 Cong. Rec. S1410 (Mar. 5,1998)...................................... 9
144 Cong. Rec. S1419 (Mar. 5,1998)................................... ...9
144 Cong. Rec. S1420 (Mar. 5,1998)............................... .9,17
144 Cong. Rec. S1421 (Mar. 5,1998)................................... ...9
144 Cong. Rec. S1422 (Mar. 5,1998).....................................18
144 Cong. Rec. S1423 (Mar. 5,1998).................................... 24
144 Cong. Rec. S1424 (Mar. 5,1998).................................. ....9
144 Cong. Rec. S1425 (Mar. 5,1998).................................9,24
144 Cong. Rec. S1426 (Mar. 5,1998)................................9,17
144 Cong. Rec. S1427 (Mar. 5,1998)...........................  9
144 Cong. Rec. S1428 (Mar. 5,1998)................... .............9,24
144 Cong. Rec. S1430 (Mar. 5,1998).............................. 18, 24



V lll

144 Cong. Rec. S1433 (Mar. 5,1998).................................... 24
144 Cong. Rec. S5414 (May. 22,1998).................................. 18

61 Fed. Reg. 26042 (May 23,1996).............................. passim
63 Fed. Reg. 35714 (June 30, 1998)................................ 19, 20
64 Fed. Reg. 5096 (Feb. 2,1999).................................... ..... 29
64 Fed. Reg. 52806 (Sept. 30,1999).................. ............ •••••••20

H.R. Rep. No. 100-736 (1988)......................................... -9,18

GAO Report to Congressional Committees:
Disadvantaged Business Enterprises,
Critical Information is Needed to
Understand Program Impact (June 2001)..........20, 21

OTHER AUTHORITY

1 Weinstein’s Federal Evidence (2d ed. 2000) 29



INTEREST OF AMICI CURIAE
This brief is submitted on behalf of certain individual 

members of the United States House and Senate (the 
“Congressional Amici”) as amici curiae.1 The Congressional 
Amici have a strong interest in affirming the 
constitutionality of the statutory scheme underlying the 
United States Department of Transportation’s current 
affirmative action programs for construction projects. We 
believe that this statutory scheme is a constitutionally 
permissible authorization to the Department of 
Transportation (“DOT”) to take steps to remedy egregious 
and documented discrimination against small disadvantaged 
business enterprises (“DBEs”) in federal and federally- 
assisted contracting.

We have a more general interest in ensuring that the 
federal government has the authority and flexibility 
necessary to continue to make meaningful progress in our 
Nation’s quest for racial equality, both in DOT and other 
programs implemented by the Executive Branch. We are 
aware that DOT has engaged in extensive efforts to devise 
regulations that comply with this Court’s guidance 
regarding the constitutional requirements for race- and 
gender-conscious remedies for discrimination. While the 
focus of the brief is the statutory framework and, therefore, 
does not take a position on the regulations at issue in this 
case, some of the amici have reviewed these regulations, 
including the extensive reforms which DOT has 
implemented since 1998, and have concluded that these 
regulations meet constitutional requirements. If this Court 
discerns a constitutional defect in one or more of DOT’S

A list of these individual members of Congress is included in the 
appendix to this brief. Counsel for the Congressional Amici were the sole 
authors of this brief. No person or entity other than the Congressional 
Amici made a financial contribution to this brief. Pursuant to Supreme 
Court Rule 37.2(3)(a), all parties have consented to the filing of this brief. 
These consents have been filed concurrently with this brief.



2

implementing regulations, we respectfully urge the Court to 
make clear that the underlying statutory framework 
remains constitutionally sound.

SUMMARYOF THE ARGUMENT
When this Court first considered this case, it held that 

“strict scrutiny” applies to all racial classifications employed 
by any governmental entity. It also stated that strict 
scrutiny is not necessarily “fatal in fact” and that race­
conscious remedial programs are constitutional if they are 
narrowly tailored to further the compelling interest of 
remedying the effects of identified racial discrimination. 
The statutory scheme at issue in this case meets these 
requirements.

As this Court has explained, the proper application of 
strict scrutiny respects the important institutional 
differences between the United States Congress and other 
governmental institutions such as state agencies and local 
city councils. Race-conscious measures undertaken by the 
federal government must be narrowly tailored to achieve a 
compelling interest; but, as the national legislature, 
Congress is entitled to identify that interest and tailor its 
statutory response at a level of generality appropriate to 
nationwide legislation. Thus, when deciding whether the 
problems it confronts are national in scope, Congress may 
consider nationwide rather than local evidence. Congress 
may also authorize nationwide programs and, within 
appropriate constitutional limits, entrust the narrow 
tailoring of these programs to the Executive Branch. For 
example, Congress may enact a statute authorizing a race- 
or gender-conscious remedy in all areas of the country even 
if evidence shows that, at a particular time, the effects of 
discrimination are present only in certain areas of the 
country. The Executive Branch agencies may then tailor 
the program to address areas of the country where those 
effects are present. Congress may also determine that



3

certain groups have presumptively been affected by 
discrimination based on their race or gender and authorize 
Executive Branch agencies to employ the presumption only 
under appropriate circumstances. In reviewing these 
statutes, the role of the courts is to determine whether 
these statutory authorizations can be applied in a 
constitutional manner. If so, the statutes are constitutional.

Under an appropriate application of strict scrutiny as 
applied to national legislation, the statutes underlying 
DOT’s affirmative action programs are constitutional. 
Congress had far more than the “strong basis in evidence” 
required by this Court when it concluded, repeatedly over 
the past two decades, that minority-owned contracting firms 
have faced substantial discriminatory barriers to fair and 
equal participation in federal contracting simply because of 
their race. Furthermore, Congress has more recently 
gathered strong evidence showing that women-owned firms 
are adversely affected by discrimination in their efforts to 
become competitively viable. Many of the same factors that 
hamper the growth of minority-owned firms harm women- 
owned firms as well.

The statutes authorizing DOT’s affirmative action 
programs provide sufficient discretion to DOT to implement 
remedies that are narrowly tailored to address this history 
of discrimination in a manner that is sensitive to the 
differences between the various regions of this country. 
These statutes set modest aspirational goals for 
participation by small minority- and women-owned firms. 
Moreover, they permit implementing officials to modify—or 
disregard—those goals if local or individual circumstances 
show that they are not needed or that achieving them would 
involve inappropriate costs. The statutes also provide a 
presumption regarding groups that have been adversely 
affected based on race or gender. They permit Executive 
Branch officials to apply this presumption in a flexible way



4

and to disregard it under appropriate circumstances. 
Moreover, the statutes do not require any implementing 
Executive Branch agency or recipient of federal funds to 
employ a quota or set-aside.

Because these statutes are narrowly tailored to further 
Congress' compelling interest in—indeed, responsibility 
for—remedying the persistent and egregious discrimination 
against minority-owned firms in federal contracting, the 
Congressional Amici respectfully urge this Court to affirm 
the judgment of the Tenth Circuit Court of Appeals.

ARGUMENT
I. CONGRESS HAS A COMPELLING INTEREST IN

REMEDYING DISCRIMINATION IN
GOVERNMENT CONTRACTING
When this Court first had the opportunity to consider 

this case, it made clear that “all racial classifications, 
imposed by whatever federal, state, or local governmental 
actor, must be analyzed by a reviewing court under strict 
scrutiny. In other words, such classifications are 
constitutional only if they are narrowly tailored measures 
that further compelling governmental interests.” See 
Adarand Constructors, Inc. v. Pena, 515 U.S. 200,227 (1995) 
(“.Adarand F’). The current statutory regime satisfies this 
test.

Remedying and eradicating the effects of past and 
present racial discrimination is indisputably an appropriate 
and compelling justification for legislative action. As this 
Court explained in Adarand I, “[t]he unhappy persistence of 
both the practice and the fingering effects of racial 
discrimination against minority groups in this country is an 
unfortunate reality, and government is not disqualified from 
acting in response to it.” 515 U.S. at 237. That interest 
includes a compelling responsibility to ensure that public 
funds appropriated and spent by Congress are not used to 
finance and entrench a system of private discrimination. See



5

City of Richmond v. J.A  Croson Co., 488 U.S. 469, 492 
(1989) (O’Connor, J.) (“It is beyond dispute that any public 
entity, state or federal, has a compelling interest in assuring 
that public dollars, drawn from the tax contributions of all 
citizens, do not serve to finance the evil of private 
prejudice.”).

A. Because Congress Legislates At A National 
Level, The Evidence It Considers Is National In 
Scope

As the national legislature, Congress has a unique role in 
our constitutional structure. It has greater responsibilities 
than State and local governments and different institutional 
strengths in carrying them out. Because of its unique 
authority to identify nationwide problems and craft 
nationwide solutions, Congress necessarily reviews evidence 
and legislates at a higher level of generality than a State or 
locality. Although this Court has held that race-conscious 
remedial action undertaken by Congress is subject to the 
same “strict scrutiny” as similar programs undertaken by 
State and local governments, see Adarand I, 515 U.S. at 235, 
the Court has never suggested such scrutiny requires a 
reviewing court to ignore the important institutional and 
jurisdictional differences between Congress and other 
government institutions. Petitioner’s suggestion that 
Congress is required to compile local disparity studies for 
every community nationwide before authorizing a national 
program, see Pet.’s Br. at 33-34, has no basis in this Court’s 
precedents and shows a profound lack of understanding of 
Congress’ constitutional role.

It is neither appropriate nor practicable to require 
Congress, in enacting national legislation, to investigate and 
make detailed findings regarding the justification and 
expected consequences of this legislation in every 
community that may be affected. If such narrow local 
findings were required before Congress could employ a



6

race- or gender-conscious remedy to redress identified, 
nationwide discrimination, Congress could not, as a practical 
matter, act at all. Consequently, only States and localities 
could employ such remedies—a result which is directly 
contrary to the letter and spirit of the Fourteenth 
Amendment. Cf Croson, 488 U.S. at 521-22 (Scalia, J., 
concurring) (“[I]t is one thing to permit racially based 
conduct by the Federal Government—whose legislative 
powers concerning matters of race were explicitly enhanced 
by the Fourteenth Amendment—and quite another to 
permit it by the precise entities against whose conduct in 
matters of race that Amendment was specifically directed.”) 
(citing U.S. Const, amends. 14, § 5 and 14, § 1, respectively).

As this Court has repeatedly recognized, even the most 
searching judicial scrutiny should be applied in a manner 
that takes account of Congress’ uniquely national 
responsibilities and authority. In Fullilove v. Kiutznick, 448 
U.S. 448 (1980), a plurality carefully reviewed the legislative 
history of the initial version of the current program and 
concluded that “Congress had abundant evidence from 
which it could conclude that minority businesses have been 
denied effective participation in public contracting 
opportunities by procurement practices that perpetuated 
the effects of prior discrimination,” and that “Congress 
acted within its competence to determine that the problem 
was national in scope.” 448 U.S. at 477-78 (Burger, C.J.). 
The evidence relied upon by Congress in making that 
determination included nationwide statistics gathered by 
federal agencies about past experience with federal 
contracting, locality-specific evidence of discrimination in 
“state and local construction contracting,” id. at 478, and 
testimony and anecdotal evidence presented to 
congressional committees. See id. at 457-68, 477-78 (Burger, 
C.J.); see also id. at 503-06 (Powell, J., concurring) (finding, 
upon a review of the legislative record, that “Congress 
reasonably concluded that private and governmental



7

discrimination had contributed to the negligible percentage 
of public contracts awarded [to] minority contractors”).

In Croson, this Court again acknowledged that the 
national scope of Congress’ responsibilities distinguished its 
authority from that of State and local governments, whose 
laws cannot reach beyond their limited geographical 
jurisdictions. 488 U.S. at 489-91. As Justice O’Connor 
explained, “Congress may identify and redress the effects of 
society-wide discrimination,” Id. at 490, and the evidence 
relevant to its use of race-conscious measure is therefore 
inherently and inescapably different. “[0]ther 
governmental entities might have to show more than 
Congress before undertaking race-conscious measures: 'The 
degree of specificity required in the findings of 
discrimination and the breadth of discretion in the choice of 
remedies may vary with the nature and authority of the 
governmental body.’” See id. at 489 (O’Connor, J.) (quoting 
Fullilove, 448 U.S. at 515-16 n.14 (Powell, J., concurring)); 
cf. Oregon v. Mitchell, 400 U.S. 112, 117-18 (1970) (Black, J.) 
(unanimously upholding Congress’ authority to apply 
provisions of the Voting Rights Act nationwide without 
making state-by-state findings).

The fact that Congress appropriately considers 
nationwide evidence when identifying nationwide problems, 
however, does not mean that a reviewing court must ignore 
local differences when considering the specific application of 
a congressional policy. See, e.g., Croson, 488 U.S. at 504 
(“By its inclusion of a waiver procedure in the national 
program addressed in Fullilove, Congress explicitly 
recognized that the scope of the problem would vary from 
market area to market area.”); Fullilove, 448 U.S. at 514 
(Powell, J., concurring) (“Although the set-aside is pegged 
at a reasonable figure, its effect might be unfair if it were 
applied rigidly in areas of the country where minority group 
members constitute a small percentage of the population.



8

To meet this concern, Congress enacted a waiver 
provision....”).

B. Strict Scrutiny Does Not Require This Court To 
Abandon Its Traditional Respect For Congress’ 
Factual Findings

The evidence supporting Congress’ findings of 
persistent and egregious discrimination in this case is so 
overwhelming, see Section II infra, that this Court need not 
decide the precise extent of deference owed to Congress’ 
factual findings, either generally or in the specific context of 
Congressional remedies for racial discrimination. It is clear 
that the required “strong basis in evidence” for Congress’ 
findings exists in this case even if this Court gives Congress 
the same deference it gives to fact-finding by State and local 
legislative bodies.

If it should reach the issue, however, this Court should 
recognize at a minimum that the proper application of strict 
scrutiny does not require it to abandon its traditional 
respect for Congress’ unique constitutional position as a 
coequal branch of government, or its sensible recognition 
that the fact-gathering resources of Congress and the 
information that it properly considers when considering 
legislation far exceed those available to any reviewing court. 
See, e.g., Fullilove, 448 U.S. at 502-03 (Powell, J., 
concurring) (Congress’ “special attribute as a legislative 
body lies in its broader mission to investigate and consider 
all facts and opinions that may be relevant to the resolution 
of an issue.”). Furthermore, given Congress’ constitutional 
obligation to address and redress racial discrimination in 
this country, the degree of judicial deference paid to its 
factual findings in this area has traditionally been greater 
than that afforded to the States. See, e.g., Croson, 488 U.S. 
at 487-92. That respect is particularly appropriate where, as 
here, the subject matter involves our Nation’s continuing 
struggle with the effects of past and present racial



9

discrimination. Congress, “unlike any State or political 
subdivision, has a specific constitutional mandate to enforce 
the dictates of the Fourteenth Amendment.” Id. at 490. 
This Court has consistently recognized that “[t]he power to 
‘enforce’ may at times also include the power to define 
situations which Congress determines threaten principles of 
equality and to adopt prophylactic rules to deal with those 
situations.” Id. (citing Katzenbach v. Morgan, 384 U.S. 641, 
651 (1966)).

When considering whether Congress has compiled a 
sufficient record to support the abrogation of a State’s 
sovereign immunity under the Eleventh Amendment, this 
Court has cited as an example of substantial congressional 
fact-finding the evidentiary record which Congress amassed 
over the past thirty years demonstrating a pattern of 
egregious racial discrimination in regard to voting in this 
country. See, e.g., Board of Trustees of the Univ. of 
Alabama v. Garrett, 121 S. Ct. 955, 967-68 (2001) (noting the 
‘“great care’” with which Congress “documented a marked 
pattern of unconstitutional action by the States” in 
discriminating against minority voters) (relying on South 
Carolina v. Katzenbach, 383 U.S 301, 308, 312 (1966)); see 
also City of Boeme v. Flores, 521 U.S. 507, 530-33 (1997) 
(also citing Katzenbach). Here, Congress has likewise built 
a substantial record concerning the prevalence and 
persistence of racial discrimination within the construction 
industry prior to enacting the legislation which is at issue in 
this case. All of this evidence has been thoroughly 
considered and analyzed through countless hearings, 
studies, and debates. See, e.g., 61 Fed. Reg. 26042, 26051-52 
& n.12 (May 23, 1996); H.R. Rep. No. 100-736, at 7-57 (1988); 
144 Cong. Rec. S1401-04, S1408-10, S1419-21, S1424-28 (Mar. 
5, 1998) (statements of Sens. Warner, Baucus, Kerry, 
Wellstone, Mosely-Braun, and Domenici).



10
Petitioner argues that Congress is entitled to a lesser 

degree of judicial deference because it is not acting on the 
basis of its power under Section 5 of the Fourteenth 
Amendment. See Pet.’s Br. at 22-23 & n.15. Whether or not 
Section 5 applies to the various Congressional actions at 
issue here depends in part on how this Court ultimately 
decides to frame the scope of Petitioner’s challenge.2 
Whether or not Section 5 technically provided Congress the 
authority for the particular statutes under review in this 
case, the core factual findings of discrimination in the 
contracting industry at issue here have been repeatedly 
made by Congress in contexts where it was unquestionably 
exercising its unique authority under that Section. See, e.g., 
Croson, 488 U.S. at 504 (recognizing that, in enacting the 
MBE program upheld in Fullilove, “Congress was 
exercising its powers under § 5 of the Fourteenth 
Amendment in making a finding that past discrimination 
would cause federal funds to be distributed in a manner 
which reinforced prior patterns of discrimination”). 
Congress is not required to forget the facts it has gathered 
and the conclusions it has drawn when it moves on to a new 
statute. Fullilove, 448 U.S. at 502-03.

C. Strict Scrutiny Does Not Limit Congress To 
Considering Only A Narrow, Particular Class Of 
Evidence

Petitioner also argues that Congress is not entitled to 
consider any evidence other than statistical studies meeting 
four arbitrary “criteria” when determining whether a 
compelling interest in remedying racial discrimination 
exists. See Pet.’s Br. at 28-33. Petitioner further contends

In particular, Petitioner appears to argue that only Federal 
Executive Branch contracting is at issue, not DOT’S program providing 
grants to States and localities. See Pet.’s Br. at 15-17 & n.10. The 
Congressional Amici do not take a position on the various standing, law of 
the case, and waiver issues associated with this argument.



11

that Congress cannot conclude that a problem is nationwide 
in nature, and therefore amenable to a nationwide remedy, 
unless it identifies strong evidence of that problem “in at 
least a majority of States.” Id. at 33-34. Neither of these 
arbitrary limits on Congressional authority has any 
foundation in this Court’s precedents, and both are 
incompatible with the legislative process and Congress’ 
unique position in our constitutional system.

This Court has never suggested that Congress may 
consider only statistical evidence—and then only statistical 
evidence satisfying certain arbitrary study-design criteria 
laid down by the federal courts—when studying critical 
national issues like the ongoing presence and effects of 
racism in our society. To the contrary, the Court has 
appropriately recognized that “[t]he factfinding process of 
legislative bodies is generally entitled to a presumption of 
regularity and deferential review by the judiciary,” Croson, 
488 U.S. at 500, and that Congress is far better positioned 
than the courts to ‘“amass and evaluate the vast amounts of 
data’” relevant to national policy. See Turner Broad. Sys. v. 
FCC, 520 U.S. 180,195 (1997) (citation omitted).

As this Court explained in Turner, “[t]he Constitution 
gives to Congress the role of weighing conflicting evidence 
in the legislative process.” 520 U.S. at 199. As a result, the 
federal courts “must give considerable deference, in 
examining the evidence, to Congress’ findings and 
conclusions.” Id. Congress is certainly entitled to rely on a 
fact-finding process that is as broad and flexible as that 
relied on by state legislatures, which can involve many 
different types of evidence, including anecdotal evidence. 
See Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377, 393-94 
(2000) (finding that the evidence supporting Missouri’s 
campaign finance reform law, which consisted mainly of a 
series of “newspaper accounts of large contributions 
supported] inferences of impropriety,” did “not present a



12

close call” as to the sufficiency of the legislative record 
supporting reform); cf. Florida Bar v. Went For It, Inc., 515 
U.S. 618, 627-28 (1995) (noting that “[t]he anecdotal record” 
supporting the regulation on attorney solicitations “[wa]s 
noteworthy for its breadth and detail,” especially since the 
views expressed by these individuals corresponded with the 
general conclusions of the statistical studies that were 
performed). While Congress must support its legislation 
with something more than “a generalized assertion as to the 
classification's relevance to its goals,” see Croson, 488 U.S. 
at 500-01, or “mere conjecture,” see Nixon, 528 U.S. at 392, 
this Court has repeatedly explained that a ‘“strong basis in 
evidence’ need not take any particular form.” See, e.g., Bush 
v. Vera, 517 U.S. 952, 994 (1996) (O’Connor, J., concurring); 
accord Abrams v. Johnson, 521 U.S. 74, 110 (1997) (Breyer, 
J., dissenting).

Indeed, Petitioner's proposed test would leave Congress 
with much less latitude for the application of its sound 
common sense than the jury is permitted in any routine 
Title VII case. That cannot be, and is not, the law. As 
Justice Kennedy explained in Croson, “evidence which 
would support a judicial finding of intentional discrimination 
may suffice also to justify remedial legislative action, for it 
diminishes the constitutional responsibilities of the political 
branches to say they must wait to act until ordered to do so 
by a court.” 488 U.S. at 519 (Kennedy, J., concurring); see 
also Fullilove, 448 U.S. at 457-68, 477-78 (Burger, C.J.) 
(summarizing and approving of evidence relied on by 
Congress, including direct testimony and anecdotal 
evidence); see also id. at 503-06 (Powell, J., concurring).

Petitioner's suggestion that Congress cannot assert a 
compelling interest in remedying a problem on a national 
scale unless it makes specific findings that that problem 
occurs in at least a majority of the States is similarly 
arbitrary and unsupportable. As previously explained, see



13

Section I.A supra, this Court has never required Congress 
to make state-by-state findings when it legislates nationally. 
See also Fullilove, 448 U.S. at 457-468,477-78 (Burger, C.J.); 
id. at 504-06 (Powell, J., concurring); accord Croson, 488 
U.S. at 488-492. Any rigid requirement that Congress make 
detailed state-by-state or city-by-city findings is simply 
incompatible with the legislative process. See Fullilove, 448 
U.S. at 478 (Burger, C.J.) (“Congress, of course, may 
legislate without compiling the kind of 'record' appropriate 
with respect to judicial or administrative proceedings.”).

D. Congress Had A  Strong Basis in Evidence For 
Concluding That Construction Contracts Were 
Affected by Race And Gender Discrimination

Strict scrutiny requires only that there be a '“strong 
basis in evidence for [Congress’] conclusion that remedial 
action was necessary,”' Croson, 488 U.S. at 500 (quoting 
Wygantv. Jackson Bd. o f Edue., 476 U.S. 267, 277 (1986)), in 
order to “smoke out” the possibility that an assertedly 
remedial statute was ‘“in fact motivated by illegitimate 
notions of racial inferiority or simple racial politics.’” 
Adarand I, 515 U.S. at 226 (quoting Croson, 488 U.S. at 
493). Given the evidence of discrimination accumulated by 
Congress over the last twenty-five years—evidence 
described by the District Court as “vast,” Adarand 
Constructors, Inc. v. Pena, 965 F. Supp. 1556,1576 (D. Colo. 
1997) (“Adarand IF), and by the Fullilove Court as 
“abundant,” 448 U.S. at 477-78 (Burger, C.J.)—-it is now 
beyond the boundary of reasonable dispute that the 
requisite “strong basis in evidence” exists for Congress to 
authorize the flexible programs at issue here.

1. Congress Has Gathered Compelling Evidence 
Of Discrimination

Over the last thirty years, Congress has carefully 
studied the effects of discrimination against small 
businesses owned by minorities and women who are



14

attempting to participate in federal, state and local 
contracting. Based on this review, Congress has concluded 
that the problem of race and gender discrimination remains 
serious enough that it may he necessary, in appropriate 
circumstances, for implementing agencies to employ a 
narrowly tailored race-conscious remedy. Congress has also 
recognized that local or individual circumstances may not 
always justify such a remedy and has given the 
implementing officials the flexibility they need to suspend or 
modify their programs as appropriate. That evidence is far 
too voluminous to fully recount, or even summarize, here— 
just as it could not be fully catalogued in the Tenth Circuit’s 
opinion or in the Appendix to the Department of Justice’s 
1996 report on Proposed Reforms to Affirmative Action in 
Federal Procurement, alternatively cited in this litigation as 
“Appendix A” or “The Compelling Interest.” See 61 Fed. 
Reg. 26042, 26050-63 (May 23,1996). We therefore limit our 
discussion to the following key points.

First, it is critical to recognize that this evidence must 
be viewed cumulatively as a whole rather than in isolation. 
Congress’ consideration of the disputed statutory provisions 
and prior laws, for example, was not informed solely by the 
voluminous materials explicitly referenced in the legislative 
history of those laws, but also by Congress’ experience with 
similar legislation over more than twenty years, beginning 
with the enactment of Section 103(f)(2) of the Public Works 
Employment Act of 1977 (“PWEA”), Pub. L. 95-28, 91 Stat. 
116,117.

Second, the breadth of the evidence considered in that 
cumulative legislative record is important not merely 
because of its sheer aggregate weight and persuasiveness, 
but also because the very diversity of that evidence should 
allay the concerns that this Court expressed in Croson 
about the permissibility of inferring discrimination from 
evidence of mere disparity. 488 U.S. at 502-06. Modem



15

social science has distinct limitations, and no statistical 
study ever manages to eliminate all variables but the one 
being studied. It is always possible, therefore, to point to a 
flaw or an alternative explanation for the results of an 
individual study or other piece of evidence that seems to 
indicate discrimination. But when many thousands of 
individual pieces of evidence, gathered over the course of 
decades from many different locations using widely diverse 
methods, suggest the same inference, Congress must be 
entitled to draw that reasonable inference. As this Court 
has already recognized in this very case, “[t]he unhappy 
persistence of both the practice and the lingering effects of 
racial discrimination against minority groups in this country 
is an unfortunate reality.” Adarand I, 515 U.S. at 237. With 
all due respect, it would be a drastic reversal of institutional 
roles for this Court to substitute its judgment for Congress’ 
on this basic and crucially important factual question.

Third, this Court has already held in Fullilove that the 
evidence relied upon by Congress in enacting Section 
103(f)(2) of the PWEA in 1977 was sufficient to establish a 
compelling interest in race-conscious relief. Chief Justice 
Burger’s plurality opinion had no difficulty concluding that 
the legislative record before Congress contained “abundant 
evidence” supporting the conclusion that “minority 
businesses have been denied effective participation in public 
contracting opportunities by procurement practices that 
perpetuated the effects of prior discrimination.” 448 U.S. at 
477-78 (Burger, C.J.). The relevant legislative record in this 
case contains the same evidence that this Court considered 
in Fullilove, as well as the accumulated products of an 
additional twenty years of careful study by Congress and 
various federal agencies.



16

2. Petitioner’s Brief Misstates The Nature And 
Scope Of The Evidence Considered By 
Congress

Petitioner claims that the “strong basis in evidence” 
identified by Congress and the Tenth Circuit consisted 
solely of evidence indicating that minority-owned businesses 
face various race-neutral barriers common to all small 
entrants in the contracting business, such as “[t]he difficulty 
of obtaining access to capital in the absence of a credit 
history or collateral.” See P e t’s Br. at 27. In fact, the 
legislative record is replete with evidence, discussed in part 
by the Tenth Circuit, that minority and women-owned 
businesses face obstacles that differ in both kind and degree 
from those faced by white-owned contracting firms of 
similar size, experience, and capitalization.

As this Court has recognized, Congress first adopted the 
race-conscious measures considered in Fullilove only after 
several decades of experience with the race-neutral 
provisions of the Small Business Act and other federal 
programs showed that those race-neutral alternatives were 
wholly ineffective. See, e.g., Croson, 488 U.S. at 507 (“The 
principal opinion in Fullilove found that Congress had 
carefully examined and rejected race-neutral alternatives 
before enacting the MBE set-aside.”); see also Adarand 
Constructors, Inc. v. Slater, 228 F.3d 1147, 1178 (10th Cir. 
2000) (“Adarand IIP’) (noting the district court’s
unchallenged finding in this case, now law of the case, that 
“Congress over a period of decades attempted to correct by 
race-neutral means the problem of too few minority 
subcontractors for government construction contracts, and 
only after it continued to find discriminatory7 effects did it 
first implement a race-conscious remedy”).

More recently, Congress was presented with dramatic 
evidence of the consequences for minority-owned 
contracting firms when existing DBE programs are



17

eliminated. As numerous Senators and Representatives 
pointed out in the floor debates over the reauthorization of 
the DBE program in the Transportation Equity Act for the 
21st Century, Pub. L. 105-178,112 Stat. 107 (“TEA-21”), the 
evidence shows that when a State eliminates or abandons its 
affirmative action programs, participation by women and 
minorities in State contracting drops precipitously, often 
falling to or near zero. See 144 Cong. Rec. S1401, S1404, 
S1409, S1420, S1426 (Mar. 5, 1998) (statements of Sens. 
Warner, Baucus, Kerry, Mosely-Braun, and Domenici) 
(discussing the experience in, inter alia, Arkansas, 
Louisiana, Missouri, Michigan, Arizona, Delaware, 
Nebraska, Oregon, and Rhode Island). By contrast, given 
the existence of DOT’s affirmative action program, 
minority- and women-owned businesses typically received 
between 10 and 15 percent of the subcontracts on federal 
projects in these States. See id. Although these firms were 
qualified and able to perform work on federal construction 
projects, they were “completely shut out” of state 
contracting opportunities. Id. at S1409 (statement of Sen. 
Kerry). Given this and the other evidence available to it, 
Congress could reasonably and permissibly conclude that 
these businesses were continuing to experience 
discrimination by others in the transportation-related 
construction industry.

While Petitioner may argue that these firms simply lost 
contracts because they did not submit the lowest bid, the 
legislative record compiled by Congress demonstrates that 
this failure is all too often the result of race and gender 
discrimination. In particular, Congress had extensive direct 
evidence of unmistakable and invidious discrimination 
against minorities, women, and the firms they owned by: (1) 
employers who discriminate against individuals on the basis 
of their race and gender; (2) prime contractors who engage 
in “bid shopping,” so that white firms receive an additional 
chance to undercut the bid of a minority firm; (3) unions



18

which have sometimes kept minorities out of their 
organizations; (4) suppliers who often engage in 
discriminatory pricing by charging minority-owned firms 
prices which are far in excess of those paid by white 
businesses; and (5) lending and bonding institutions which 
typically refuse to provide the necessary financing to 
minority- and women-owned businesses or simply do so in 
far lower quantities at far higher rates. See, e.g., 61 Fed. 
Reg. at 26054-62, H.R. Rep. No. 100-736, at 7-57.

As the Tenth Circuit put it, these patterns of 
discrimination :'ha[ve] woefully impeded the formation of 
qualified minority business enterprises in the 
subcontracting market nationwide.” See Adarand III, 228 
F.3d at 1168. For example, “[o]ver and over again, studies 
show that minority applicants for business loans are more 
likely to be rejected and, when accepted, receive smaller 
loan amounts than nonminority applicants with identical 
collateral and borrowing credentials.” 61 Fed. Reg. at 
26057-58. Congress also possessed evidence that materials 
suppliers deliberately charge higher prices for the same 
goods to minority-owned firms. See id. at 26061. Obviously, 
these and the other factors noted by Congress demonstrate 
that racial discrimination continues to skewr the distribution 
of governmental contract and subcontract awards at both 
the state and federal level.

Congress carefully considered all of this evidence when 
re-authorizing the DBE program in TEA-21 in 1998. See, 
e.g., 144 Cong. Rec. S1422, S1430 (Mar. 5, 1998) (statements 
of Sens. Robb and Kennedy); id. at S5414 (May 22, 1998) 
(statement of Sen. Chafee); see also 144 Cong. Rec. H2006, 
H2010, H2011 (Apr. 1, 1998) (statements of Reps. Scott, 
Dixon, and Millender-McDonald). Those comments and 
others show beyond any doubt that the extensive evidence 
of overt discrimination in the construction industry 
presented to the courts below was in fact carefully



19

considered by Congress. Indeed, Representative Norton’s 
discussion of that evidence during the House debate is 
particularly noteworthy. Id. at H3957-60 (May 22,1998).

While Petitioner suggests that a recent “benchmark” 
study conducted by the Department of Commerce (“DOC”) 
and an assessment of DOT’s DBE program prepared by the 
General Accounting Office (“GAO”) undermine Congress’ 
“compelling interest” findings, this argument is meritless. 
First, even if the conclusions of these two studies were 
inconsistent with other evidence, they would not outweigh 
the overwhelming evidence that points in the other 
direction. Second, and more importantly, the conclusions of 
these studies are not inconsistent with Congress’ findings.

The federal government uses the process of 
‘benchmarking” to determine when race-conscious 
measures are needed in a particular region in order to 
address a disparity in federal contract awards in situations 
where it has been “demonstrat[ed] that minority business 
formation and operation in a specific industry has been 
suppressed by discrimination.” See 61 Fed. Reg. at 26045- 
46. Benchmarking employs an economic and statistical 
analysis which is designed to measure gaps in contracting 
awards to small minority-owned prime contractors 
compared to their white counterparts, taking into account 
the size, age and other relevant characteristics of these 
businesses. See 63 Fed. Reg. 35714, 35716-18 (June 30, 
1998). As a result, the federal government is better able to 
measure the lack of minority participation in government 
contracts which results from discrimination.

Moreover, the benchmarking study is limited to prime 
contractors, and it does not purport to measure the 
obstacles faced by new firms attempting to enter the market 
either as a prime contractor or a subcontractor. Nor does 
benchmarking attempt to measure the level of contracting 
that groups would achieve in the absence of affirmative



20

action programs. Consequently, it understates the 
disparities that would exist in the absence of such programs. 
See 63 Fed. Reg. at 35718 & n.10. The benchmarking study 
is also based on regional assessments and does not indicate 
how many States within each region show continuing effects 
of discrimination. Therefore, a finding that there are not 
identifiable effects of discrimination within a given region 
overall does not mean there are not such effects in certain 
States within that region.3

Presently, the DOC has concluded that no significant 
disparity exists in the awarding of federal construction 
contracts to prime contractors in seven out of nine regions in 
this country. See 64 Fed. Reg. 52806, 52808 (Sept. 30, 1999). 
As a result, the federal government has suspended its race- 
based affirmative action efforts in these areas. See 61 Fed. 
Reg. at 26046-47. The primary conclusion to be drawn from 
the benchmarking study is that the Executive Branch has 
developed a method to narrowly tailor the remedial scheme 
authorized by Congress by ensuring that race-based 
measures are used only where and when they are necessary.

The GAO report cited by Petitioner attempted to 
measure the progress of DOT’s current DBE program. See 
GAO, Report to Congressional Committees: Disadvantaged 
Business Enterprises, Critical Information Is Needed To 
Understand Program Impact 3-4 (June 2001). This report 
primarily concluded that inconsistent data-gathering and 
record-keeping by State agencies made it impossible to

Because the DOC’s benchmarking study is based on regional 
assessments, it does not indicate how many States within each region 
show continuing effects of discrimination. Obviously, a finding  that there 
are no effects of discrimination in federal contracting in a particular 
region does not mean there are no such effects in certain states within the 
region. In this respect, the study provides no support for Petitioner’s 
claim that “Congress ha[s] affirmative reason to believe there is no 
nationwide discrimination against minority highway construction 
companies.” See Pet.’s Br. at 33-34.



21

definitively answer questions concerning the program’s 
success. Id. at 18-24. The report certainly did not conclude 
that DBEs do not face discrimination in the contracting 
industry. To the contrary, GAO noted that, where 
“sufficient data” was available about the effects of 
discontinuing a DBE program (in Minnesota and Louisiana), 
the results showed that DBE participation in contracting 
“dramatically declined” when an affirmative action program 
was cancelled, id. at 38-40, which only serves to reinforce 
the earlier findings made by Congress on this point. See 
Section I.B supra. In fact, the report’s most skeptical 
assertion is that “limited data” and “methodological 
weaknesses” which are “inherent in conducting disparity 
studies” and “common to social science research” created 
“uncertainties” about the findings of discrimination in 
fourteen recent disparity studies. See GAO Rept. at 29. 
That is hardly a repudiation of Congress’ extensive findings. 
II. THE STATUTES AT ISSUE IN THIS CASE ARE 

NARROWLY TAILORED TO FURTHER THE 
COMPELLING INTEREST IDENTIFIED BY 
CONGRESS
A. Congress Can Leave Details Of Implementation 

To Executive Branch Agencies
Any race-conscious measures must be narrowly tailored 

to further Congress’ compelling interest in remedying, and 
avoiding passive participation in, identified discrimination. 
See Adarand I, 515 U.S. at 237. When Congress authorizes 
the Executive Branch to implement a national program that 
includes race-conscious and gender-conscious remedies, 
“narrow tailoring” at the statutory level requires only that 
the statute’s requirements not be facially unconstitutional, 
and that they permit agencies the flexibility needed to 
employ these remedies under appropriate circumstances.

As this Court recognized in both Fullilove and Croson, if 
Congress provides the implementing agencies sufficient



22

flexibility to narrowly tailor a race-conscious remedy, it 
need not specify on the face of the statute precisely how 
such a remedy would be employed under all circumstances. 
Chief Justice Burger emphasized this point in Fullilove, 
noting that “[administrative definition has tightened some 
less definite aspects of the statutory identification of the 
minority groups encompassed by the program...to... 
eliminate from participation in the program [DJBE’s who 
are not "bona fide' within the regulations and guidelines,” 
and that the program permitted administrative waivers if 
its percentage goals could not be achieved in a particular 
instance “within the limitations of the program’s remedial 
objectives.” 448 U.S. at 487-88 (Burger, CJ.); see also id. at 
468 (“Congress relied on the administrative agency to flesh 
out this skeleton, pursuant to delegated rulemaking 
authority, and to develop an administrative operation 
consistent with legislative intentions and objectives.”).

B. The Statutory Goals Are Narrowly Tailored
The aspirational goals for minority participation in 

federal contracting included in the Small Business Act and 
TEA-21 are narrowly tailored to achieve the compelling 
interest identified by Congress. They were enacted at a 
level of generality appropriate to national legislation, and 
they permit Executive Branch officials charged with 
implementing those goals adequate flexibility to narrowly 
tailor the program’s implementation to local or even 
individual conditions. Although there are minor variations in 
language, the statutory goals for DBE participation in 
federal contracting share one important characteristic: all of 
them are aspirational and expressly subject to 
administrative waiver or revision, on both a national and 
local level, in the event that implementing agencies and 
officials determine that they exceed the program’s remedial 
justification.



23

The statutes all provide that the relevant targets are 
“goals” and that they apply “[e]xcept to the extent the 
Secretary determines otherwise.” See, e.g., TEA-21, Pub. L. 
No. 105-178, § 1101(b)(1), 112 Stat. 107, 113 (1998); 
Intermodal Surface Transportation Efficiency Act of 1991, 
Pub L. No. 102-240, Tit. I, § 1003(b), 105 Stat. 1914, 1919- 
1920 (“ISTEA”) (same). Because of this flexibility, these 
goals have nothing in common with the “rigid [30%] racial 
quota” invalidated by this Court in Crosori. 488 U.S. at 499; 
id. at 504 (“By its inclusion of a waiver procedure in the 
national program addressed in Fullilove, Congress 
explicitly recognized that the scope of the problem would 
vary from market area to market area.”); Fullilove, 448 U.S. 
at 514 (Powell, J., concurring) (“Although the set-aside is 
pegged at a reasonable figure, its effect might be unfair if it 
were applied rigidly in areas of the country where minority 
group members constitute a small percentage of the 
population. To meet this concern, Congress enacted a 
waiver provision....”).

The new DOT regulations implementing its DBE 
program demonstrate full well that the challenged statutes 
leave sufficient flexibility for constitutional application. 
Those regulations expressly recognize that the 10 percent 
statutory goal in TEA-21 is “an aspirational goal at the 
national level” which “does not authorize or require 
recipients to set overall or contract goals at the 10 percent 
level, or any other particular level.” 49 C.F.R. § 26.41 
(2000). Instead, recipients must set goals for DBE contract 
participation on the basis of “demonstrable evidence of the 
availability of ready, willing and able” DBEs in the 
recipient’s local market. 49 C.F.R. § 26.45 (2000). That goal 
must be based on all available evidence concerning that 
market, and its justification must be carefully documented 
in a plan submitted to DOT. Id. Thus, a state must 
effectively undertake its own benchmarking analysis in 
order to determine whether race-conscious measures are



24

necessary and, if so, to what degree. Therefore, like the 
federal government’s benchmarking approach, the use of 
these race-conscious remedies can be narrowly tailored to fit 
the precise needs of the jurisdiction in question.

Moreover, once a goal is set, the recipient must then use 
race-neutral means to “meet the maximum feasible portion” 
of that goal. 49 C.P.R. § 26.51(b) (2000) (detailing the 
various race-neutral means available). The regulations 
explicitly prohibit the use of quotas, and permit set-asides 
only in ‘limited and extreme circumstances...when no other 
method could reasonably be expected to redress egregious 
instances of discrimination.” 49 C.F.R. § 26.43 (2000). The 
recipient also need not actually meet its goals, but must 
merely make a good faith effort to do so. 49 C.F.R. § 26.47 
(2000). Waivers and exemptions are also available under 
appropriate circumstances. 49 C.F.R. § 26.15 (2000).

Congress was well aware of DOT’s efforts to narrowly 
tailor these programs, and considered that capacity to be an 
essential feature of the statutory scheme when it 
reauthorized the DBE program in TEA-21. See, e.g., 144 
Cong. Rec. S1401, S1402, S1408, S1423, S1425, S1428, S1430, 
S1433 (Mar. 5, 1998) (statements of Sens. Warner, Baucus, 
Kerry, Domeniei, Kennedy, and Boxer); see also 144 Cong. 
Rec. H2001, H2003, H2004, H2008-11 (Apr. 1, 1998) 
(statements of Reps. Tauscher, Poshard, Bonoir, Meek, 
Towns, and Millender-McDonald).

C. The Race and Gender-Conscious Presumptions 
Are Narrowly Tailored

The race- and gender-conscious presumptions of 
disadvantage included in these statutes are also narrowly 
tailored to advance Congress’ compelling interest in 
ensuring that federal funds do not serve to finance and 
perpetuate the evils of race and gender discrimination in the 
transportation-related contracting industry.



25

1. Congress Reasonably Concluded That A 
Presumption Is Necessary

The inclusion of race- or gender-conscious presumptions 
at the statutory level represents Congress’ reasonable 
conclusion that these programs may, in some circumstances, 
need to be race- and gender-conscious in order to be 
effective. Congress decided to authorize flexible race- and 
gender-conscious remedies only after purely race- and 
gender-neutral measures had proven wholly ineffectual at 
remedying the identified discriminatory conditions in the 
contracting industry. As Justice Powell acknowledged in 
Fullilove, at the time Congress enacted the initial version of 
this legislation, “it knew that other remedies had failed to 
ameliorate the effects of racial discrimination in the 
construction industry. Although the problem had been 
addressed by anti[-]discrimination legislation, executive 
action to remedy employment discrimination in the 
construction industry, and federal aid to minority 
businesses, the fact remained that minority contractors 
were receiving less than 1% of federal contracts.” 448 U.S. 
at 510 (Powell, J., concurring).

A majority of this Court in Croson cited that factual 
finding from Fullilove with approval. 488 U.S. at 504. The 
District Court in this case made a similar factual finding. 
“Congress over a period of decades attempted to correct by 
race-neutral means the problem of too few minority 
subcontractors for government construction contracts, and 
only after it continued to find discriminatory effects did it 
first implement a race-conscious remedy.” See Adarand III, 
228 F.3d at 1178.

Contrary to Petitioner’s assertion, this Court did not 
hold in Croson that a race-conscious remedy can only be 
narrowly tailored if its beneficiaries are expressly limited to 
identified, individual victims of past discrimination. Instead, 
Justice Scalia articulated this position in his concurrence;



26

but, as he pointed out, such an “individualized” program 
would not actually be race-conscious at all. 488 U.S. at 526 
(Scalia, J., concurring) (noting that “according a contracting 
preference to identified victims of discrimination” would in 
fact be “race-neutral remediation”). This Court has never 
held that individualized Title VII lawsuits or administrative 
grievance procedures are the only permissible means of 
remedying identified discrimination; indeed, that is not even 
the law under Title VII itself. See, e.g,, Local No. 93, In t’l 
Ass’n of Firefighters v. City of Cleveland, 478 U.S. 501, 516 
(1986) (voluntary action by employers under Title VII “may 
include reasonable race-conscious relief that benefits 
individuals who were not actual victims of discrimination”).

It is difficult to understand how any remedial program 
designed to achieve the objectives Congress had in mind 
could be effective without the use of some type of a 
presumption that certain groups have been disadvantaged 
by discrimination based on the racial or gender 
characteristics of that group. After considering substantial 
evidence regarding the construction industry, Congress 
concluded that the severity and pervasiveness of 
discrimination has had its most severe effect on minorities 
and women and, therefore, that they can presumed to be 
“socially disadvantaged” for purposes of determining 
eligibility. See Section LB supra. At the same time, 
Congress authorized DOT to make this presumption 
rebuttable in order to preclude those who have been 
financially successful from obtaining benefits they do not 
need. See Section II.C.2 infra. In this respect, the use of 
the presumption resembles the burden-shifting framework 
under Title VII, which enables an individual to raise an 
inference of discrimination upon a showing of certain facts 
but allows this inference to be overcome upon a showing of 
other evidence. See, e.g., St. Mary’s Honor Center v. Hicks, 
509 U.S. 502, 508-11 (1993). Finally, Congress authorized



27

DOT to allow others who had experienced other forms of 
discrimination to qualify under certain circumstances.

This carefully crafted scheme achieves the goal of 
remedying the most pernicious forms of discrimination 
against those who have been most severely affected, while 
allowing others who experience other forms of 
discrimination to qualify under some circumstances. 
Precluding the use of all types of presumptions based on 
race or gender would prevent Congress from addressing the 
reality that women and minorities have experienced 
pervasive and severe discrimination by making it overly 
difficult for members of these groups to establish these 
effects. Strict scrutiny would, thus, become “fatal in fact,” 
contrary to this Court’s prior statements. See, e.g.,
Fullilove, 448 U.S. at 519.

2. The Presumption Can Be Applied In A 
Constitutional Way

Like the aspirational goals discussed above, the 
presumptions of disadvantage included in the statutes 
potentially at issue in this case are flexible enough to be 
applied in a constitutional way. As implemented under the 
current DOT regulations, the presumption of social and 
economic disadvantage plays an essentially procedural role. 
Applicants for DBE status who are members of the 
specified minority groups must still certify, under penalty of 
perjury, that they are in fact socially and economically 
disadvantaged within the meaning of the statute, and that 
status may be challenged by any person, including the 
contractor, the certifying authority, and DOT itself. 49 
C.F.R. §§ 26.67, 26.83, 26.87 (2000). The Small 
Disadvantaged Business (“SDB”) program, which applies to 
contracting opportunities with the federal government, 
imposes similar requirements. 13 C.F.R. §§ 124.1002, 
124.1008, 124.1016-17 (2000); 48 C.F.R. § 19.703 (2000). 
Moreover, and more importantly, applicants to both



28

programs must now demonstrate that they are economically 
disadvantaged by submitting documentation concerning 
their personal net worth, and this presumption is 
automatically rebutted for any individual whose net worth 
exceeds $750,000. 49 C.F.R. § 26.67(b)(1) (2000); 13 C.F.R. 
§§ 124.1002(c), 124.1008(e). Furthermore, applicants who 
are not entitled to the presumption may nonetheless 
establish, by a mere preponderance of the evidence, that 
they are in fact socially and economically disadvantaged. 49 
C.F.R. § 26.61(d) (2000); 13 C.F.R. § 124.1008(e)(2). As 
implemented, therefore, the presumption simply reflects a 
factual judgment by Congress and the SBA that members of 
the enumerated groups are more likely to be socially and 
economically disadvantaged than not.

Petitioner’s argument that those implementing 
regulations are inconsistent with the statutes, see Pet.’s Br. 
at 41-43, is meritless. As this Court recognized in Chevron 
U.S. A. Inc. v. Natural Resources Defense Council, Inc., 467 
U.S. 837 (1984), “considerable weight should be accorded to 
an executive department’s construction of a statutory 
scheme it is entrusted to administer,” and the agency’s 
administrative interpretations are entitled to deference. 467 
U.S. at 844. This is especially true when, as is the case with 
DOT, the agency has substantial experience in the area in 
question. Id. at 844-45 (“‘If this choice represents a 
reasonable accommodation of conflicting policies that were 
committed to the agency’s care by the statute, we should not 
disturb it unless it appears from the statute or its legislative 
history that the accommodation is not one that Congress 
would have sanctioned.’”) (quoting United States v. Shinier, 
367 U.S. 374, 383 (1961)). Thus, as this Court recently 
explained, in the case of a broad statutory authorization, an 
agency’s “regulation is binding in the courts unless 
procedurally defective, arbitrary or capricious in substance, 
or manifestly contrary to the statute.” See United States v. 
Mead Corp., 121 S. Ct. 2164, 2171 (2001); see also Chevron,



29

467 U.S. at 844 (noting that the agency’s interpretation 
should be “given controlling weight unless [it is] arbitrary, 
capricious, or manifestly contrary to the statute”). There is 
no showing that these regulations are flawed in any of these 
ways.

The plain meaning of the term “presumption” allows for 
rebuttable presumptions, as even the authority which 
Petitioner cites makes clear. See, e.g., 1 Weinsten’s Federal 
Evidence § 301.02[1] (2d ed. 2000) (explaining that a “fact­
finder must accept that the presumed fact...has...been 
established, unless the presumption is rebutted”) (emphasis 
added).. Moreover, the statutory framework explicitly 
provides that “[tjhe Secretary [of 'Transportation] shall 
establish minimum uniform criteria for State governments 
to use in certifying whether a concern qualifies for purposes 
of this subsection,” see TEA-21, Pub. L. 105-178 § 1101(b)(4), 
112 Stat. at 114, which amounts to a delegation of 
congressional authority to “make rules carrying the force of 
law.” See Mead, 121 S. Ct. at 2171 (also noting that 
“[delegation of such authority may be shown...by an 
agency’s power to engage in adjudication or notiee-and- 
comment rulemaking”); cf. 64 Fed. Reg. 5096 (Feb. 2, 1999). 
Furthermore, since its inception, the legislation has been 
accompanied by regulations which require an inquiry into 
whether an applicant meets the requirements of the 
program, and Congress has always been aware of these 
regulatory provisions. Cf. Fullilove, 448 U.S. at 487-88 
(observing that “[t]here is administrative scrutiny to 
identify and eliminate from participation in the program 
MBE’s who are not ‘'bona fide’ within the regulations and 
guidelines; for example, spurious minority-front entities can 
be exposed”). Indeed, at the time that Congress enacted 
TEA-21, it explained that the presumption of disadvantage 
was rebuttable and that the regulations required an 
individualized inquiry into whether a particular applicant 
truly qualified for inclusion in the program. See, e.g., 144



30

Cong. Rec. S1402 (Mar. 5, 1998) (statement of Sen. Baueus) 
(“There is the presumption that...members of certain 
minority groups are in fact disadvantaged. It is only a 
presumption, a presumption that can be overcome....”). 
Thus, all of the Chevron and Mead requirements are met.

CONCLUSION
Our focus in this brief has been the statutory framework 

underlying DOT’S programs. Consequently, we respectfully 
urge this Court to hold the Acts of Congress potentially 
implicated in this litigation are facially constitutional. As 
noted earlier, some amici have had the opportunity to 
review DOT’S regulations and have concluded that they 
meet constitutional requirements as well.

Respectfully submitted

E dward W. Correia* 
j . Scott Ballenger  
Christopher  J. Stewart 
Latham & Watkins 
555 Eleventh Street, N.W.
Suite 1000
Washington, D.C. 20004 
(202) 637-2200 
Attorneys A m id  Curiae

*Counsel of Record



APPENDIX



la

APPENDIX

LISTING OF CONGRESSIONAL AMICI

Senator Max Baucus (Montana)
Senator Tom Daschle (South Dakota)
Senator Hillary Rodham Clinton (New York)
Senator Russell D. Feingold (Wisconsin)
Senator Edward M. Kennedy (Massachusetts) 
Senator John F. Kerry (Massachusetts)
Senator Mary L. Landrieu (Louisiana)
Senator Patrick J. Leahy (Vermont)
Representative Richard A. Gephardt (Missouri)