Adarand Constructors, Inc. v. Mineta Brief of Women First National Legislative Committee, et al. Amici Curiae

    No. 00-730

Supreme Court of tfje Hmteb States

ADARAND CONSTRUCTORS, INC.,
Petitioner,

v.
NORMAN Y. MINETA, Secretary of the 

United States Department of Transportation, e ta l,
Respondents.

On  Writ  Of  cer tio r a r i To 
The United  States Court Of  Appeals  

F or Th e  Tenth  Cir c u it

BRIEF OF WOMEN FIRST NATIONAL 
LEGISLATIVE COMMITTEE, ET AL., 

AMICI CURIAE
IN SUPPORT OF AFFIRMANCE OF 

THE TENTH CIRCUIT COURT OF APPEALS

E dward W. Correia* 
Ch risto ph er  J. Stewart 
Latham  & Watkins 
555 Eleventh Street, N.W. 
Suite 1000
Washington, D.C. 20004 
(202) 637-2200

*Counsel of Record

August 10,2001



QUESTIONS PRESENTED

1. 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.

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



11

TABLE OF CONTENTS

QUESTIONS PRESEN TED......... ..........................................i

TABLE OF CONTENTS..................   iii

TABLE OF A UTHORITIES.................................................. v

INTEREST OF AMICI CU RIAE...................................  1

SUMMARY OF THE ARGUMENT...........................   3

ARGUMENT.... ..........................................

I. IN ORDER TO PREVAIL, PETITIONER
MUST ESTABLISH THAT THE STATUTES 
AND REGULATIONS CANNOT BE 
APPLIED IN A CONSTITUTIONAL 
MANNER UNDER ANY SET OF 
CIRCUMSTANCES......... ........................................ 5

II. CONGRESS AND DOT HAD A STRONG 
BASIS IN EVIDENCE FOR CONCLUDING 
THAT RACE AND GENDER 
DISCRIMINATION HAVE HARMED 
MINORITY- AND WOMEN-OWNED FIRMS
IN TRANSPORTATION-RELATED 
GOVERNMENT CONTRACTING......................... 6

III. THE NARROW TAILORING ANALYSIS
EXAMINES SEVERAL FACTORS. IT IS 
NOT A SINGLE, RIGID TEST............................... 8

IV. CONGRESS ADOPTED THE CURRENT
PROGRAM ONLY AFTER CONSIDERING 
RACE-AND GENDER-NEUTRAL 
ALTERNATIVES....................................................10



Ill

V. THE PROCESS OF DETERMINING
ELIGIBILITY FOR THE SDB AND DBE 
PROGRAMS IS NARROWLY TAILORED.......12

A. The Presumption is Rebuttable........................ 12

B. Program Eligibility Is Limited To
Persons Who Are Economically 
Disadvantaged.....................................................15

C. The Different Treatment Resulting From 
The Presumption Is Limited To The 
Burden Of Proof Placed On Applicants;
All Applicants Are Subjected To An 
Individualized Inquiry....................................... 15

D. The Presumption Applies to Groups 
Found By Congress To Have Been
Harmed By Discrimination................................17

VI. DOT REQUIRES THE USE OF RACE- AND
GENDER-NEUTRAL ALTERNATIVES 
BEFORE RACE OR GENDER-CONSCIOUS 
REMEDIES CAN BE IMPLEMENTED........... 18

VII. THE PROGRAMS LAST NO LONGER
THAN NECESSARY...................................  19

V III. THE ASPIRATIONAL GOALS ARE
NARROWLY TAILORED............................  .20

IX. THE PROVISIONS GOVERNING THE
GEOGRAPHICAL SCOPE OF THE 
PROGRAMS ARE NARROWLY 
TAILORED............ ..................................................23

X. PETITIONER HAS NOT CHALLENGED 
THE GENDER-BASED CLASSIFICATION



IV

IN THE STATUTES OR REGULATIONS 
WHICH, IN ANY EVENT, SATISFY BOTH 
STRICT AND INTERMEDIATE 
SCRUTINY................. ................................ ............ 26

CONCLUSION......... ................................... .......................... 30



V

TABLE OF AUTHORITIES 

CASES

Adarand Constructors, Inc. v. Mineta,
121 S. Ct. 1598 (2001)....................................................3

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

Adarand Constructors, Inc. v. Slater,
228 F.3d 1147 (10th Cir. 2001)..........................2,25,26

Alaska Airlines, Inc. v. Brock,
480 U.S. 678 (1987)..... ............................................... 27

Board o f Trustees of the State University o f New 
York v. Fox,
492 U.S. 469 (1989).........................................................9

Brockett v. Spokane Arcades, Inc.,
472 U.S. 491 (1985).......................................................27

Buckley v. Valeo,
424 U.S. 1 (1976)....................... ................................. 27

Bush v. Vera,
517 U.S. 952 (1996).........................................................9

Califano v. Goldberg,
430 U.S. 199 (1977)........   29

Califano v. Webster,
430 U.S. 313 (1977) 29



VI

Champlin Refining Co. v. Corporation Commission
o f Oklahoma,
286 U.S. 210 (1932).......................................................27

Chevron U.S.A. Inc. v. Natural Resources Defense 
Council, Inc.,
467 U.S. 837 (1984)....................................................... 13

City o f Richmond v. J.A. Croson Co.
488 U.S. 469 (1989).............................. ...............passim

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

Mississippi University fo r  Women v. Hogan,
458 U.S. 718 (1982).......    29

Nguyen v. INS,
121 S. Ct. 2053 (2001).......... ................ ...................9, 28

Roberts v. United States Jaycees,
468 U.S. 609 (1984)...................... ....................... ........28

Rust v. Sullivan,
500 U.S. 173 (1991)....................... ....................... . 5, 6

Texas Department o f Community A ffairs v.
Burdine,
450 U.S. 248 (1981)......................................................17

Turner Broadcasting System, Inc. v. FCC,
520 U.S. 180 (1997)........................... ............................ 8



vii

United States v. Mead Corp.,
121 S. Ct. 2164 (2001)................................................. 13

United States v. Salerno,
481 U.S. 739 (1987).................................................... . 6

United States v. Paradise,
480 U.S. 149 (1987)..................................................9,11

United States v. Virginia,
518 U.S. 515 (1996).................................................10,28

Wygant v. Jackson Board o f Education,
476 U.S. 267 (1986)..............................................6, 9,25

STATUTES

13 C.F.R. P art 121 (2000)......  15
13 C.F.R. P art 124 (2000).................................................. .3,12
13 C.F.R. § 124.103 (2000).......................................2,13,16,18
13 C.F.R. § 124.1002 (2000)............................................... 13,15
13 C.F.R. § 124.1008 (2000)...............     passim
13 C.F.R. § 124.1011 (2000)......................................................16
13 C.F.R. § 124.1014 (2000)..................................................... 20
13 C.F.R. § 124.1016 (2000)............................................... 14, 20
13 C.F.R. § 124.1017 (2000)................. ..................................14

48 C.F.R. P art 19 (2000)....................................................... 1, 3
48 C.F.R. § 19.001 (2000)............  12
48 C.F.R. § 19.703 (2000)..........................................................14
48 C.F.R. § 19.705-4 (2000)........  20
48 C.F.R. § 19.705-7 (2000).............       2
48 C.F.R. § 19.1101 (2000)................................................ ........2



Vlll

48 C.F.R. § 19.1201 (2000)..............     2
48 C.F.R. § 19.1203 (2000).....          2

49 C.F.R. P art 26 (2000)............................. ....................passim
49 C.F.R. § 26.29 (2000)...............       19
49 C.F.R. § 26.41 (2000)................................ .....................20,21
49 C.F.R. § 26.43 (2000)...........       21
49 C.F.R. § 26.45 (2000).............   passim
49 C.F.R. § 26.51 (2000)...................... ...................18,19,23,25
49 C.F.R. § 26.65 (2000)..............................  15
49 C.F.R. § 26.67 (2000)..............................  passim
49 C.F.R. § 26.73 (2000).............     16
49 C.F.R. § 26.83 (2000)............................ .........................16, 20
49 C.F.R. § 26.87 (2000).............     14

15 U.S.C. § 631 (2000)..................................     29
15 U.S.C. § 637 (2000).....................................................2,12,18
15 U.S.C. § 644 (2000).............................      21
15 U.S.C.§ 645 (2000)..............................................................16

18 U.S.C. § 1001 (2000).................................   16

31 U.S.C. § 3729 (2000)........................    16

Intermodal Surface Transportation Efficiency Act of
1991, Pub. L. No. 102-240,105 Stat. 1919............... 26

Surface Transportation and Uniform Relocation 
Assistance Act of 1987, Pub. L. No. 100-17,
101 Stat. 132........... ....................................................26

Transportation Equity Act for the 21st Century,
Pub. L. No. 105-178,112 Stat. 107 (1998). 19, 21,26,27



IX

LEGISLATIVE HISTORY

134 Cong. Ree. 27816 (Oct. 3,1988)...... .................8,27,28,29
134 Cong. Rec. 27817 (Oct. 3,1988)........................8, 27,28,29
134 Cong. Rec. 27818 (Oct. 3,1988).........................8, 27,28,29
134 Cong. Rec. 27819 (Oct. 3,1988).........................8, 27,28,29
134 Cong. Rec. 27820 (Oct. 3,1988).........................8,27,28,29
134 Cong. Rec. 27821 (Oct. 3,1988).........................8,27,28,29

144 Cong. Rec. H3960 (May 22,1998)..................................   13
144 Cong. Rec. H3958 (May 22,1998).....  6
144 Cong. Rec. H3959 (May 22,1998).................................   6

144 Cong. Rec. S1401 (Mar. 5,1998)....................................... 11
144 Cong. Rec. S1402 (Mar. 5,1998)...............      13
144 Cong. Rec. S1403 (Mar. 5,1998)....................................... 11
144 Cong. Rec. S1404 (Mar. 5,1998)......................................  11
144 Cong. Ree. S1409 (Mar. 5,1998)....... ........................... 7,11
144 Cong. Rec. S1420 (Mar. 5,1998).................................   11
144 Cong. Rec. S1421 (Mar. 5,1998)......................................  11
144 Cong. Rec. S1425 (Mar. 5,1998)........     11
144 Cong. Rec. S1426 (Mar. 5,1998)....................................... 11
144 Cong. Rec. S1490 (Mar. 6,1998)......................................... 7

61 Fed. Reg. 26042 (May 23,1996)............................ .....passim
63 Fed. Reg. 35713 (June 30,1998)......................... ....23, 24,25
64 Fed. Reg. 5096 (Feb. 2,1999).................................13,15,22
64 Fed. Reg. 52806 (Sept. 30,1999)............................20, 24,25

H.R. Rep. 100-736 (1988)........................................... 7, 8,27,29
H.R. Rep. 100-955 (1988)........................................ .............7,28



X

S. Rep. No. 100-4 (1987).............................................................7

IS  T E A ’S Race Based Set Asides After Adarand:
Hearing Before the Subcomm. on the 
Constitution, Federalism, and Prop. Rights 
o f the Senate Comm, on the Judiciary, 105th 
Cong. 117-23 (1997)........................................... ...........7

New Economic Realities: The Role o f Women
Entrepreneurs, Hearing Before the House
Comm, on Small Bus., 100th Cong. 3-158
(1988)...................................................................7, 27,28

GAO, Report to Congressional Committees:
Disadvantaged Business Enterprises,
Critical Information is Needed to
Understand Program Impact (June 2001).................. 8

OTHER AUTHORITY

2 McCormick on Evidence § 344 (5th ed. 1999).................  13

1 Weinstein’s Federal Evidence § 301.02[1] (2d ed.
2000) ......................................................................................................................... 12



IN TEREST OP AMICI CURIAE
This brief is respectfully submitted on behalf of 

Women F irst National Legislative Committee, the Illinois 
Association of Women Contractors and Entrepreneurs, the 
Federation of Women Contractors, the National Women’s 
Law Center, and the National Partnership for Women and 
Families (‘Women Amici”) as amici curiae.1

The Women Amici include organizations which 
represent small businesses owned by women of different 
races th a t operate and compete within the transportation- 
related (including airport, highway, and transit) 
construction industry. These businesses have been certified 
as Disadvantaged Business Enterprises under the federal 
grant program administered by the United States 
Department of Transportation (“DOT”). 49 C.F.R. Part 26 
(2000). They have experienced firsthand the detrimental 
effects of the discriminatory practices which, to this day, 
continue to plague the construction industry. As a result of 
this discrimination, the ability of women-owned businesses 
to compete for government contracts in the transportation- 
related area has been severely hampered. Consequently, 
these firms have a strong interest in affirming the 
constitutionality of the statutory and regulatory regimes 
currently under review.2

1 Additional information concerning these amici is provided in the
appendix. Counsel for the Women Amici were the sole authors of this 
brief. No person or entity other than the Women Amici made a financial 
contribution to this brief. Pursuant to Supreme Court Rule 37.2(3)(a), all 
parties have consented to the submission of this brief. These consents 
have been filed concurrently herewith.

The Women Amici note that there is some uncertainty over 
which aspects of DOT’S affirmative action programs are properly before 
this Court. Currently, DOT has two principal programs for assisting 
disadvantaged businesses: (1) the Small Disadvantaged Business or 
“SDB” program, which operates in connection with direct federal 
contracting; and (2) the Disadvantaged Business Enterprise or “DBE’ 
program, which provides federal grants to state and local governments 
for use in their contracting activities. Compare 48 C.F.R. Part 19 (2000) 
with 49 C.F.R. Part 26 (2000).



2

The Women Amici also include non-profit, legal 
advocacy organizations dedicated to the protection and 
advancement of women’s rights and the corresponding 
elimination of gender and other forms of discrimination from 
all facets of American life. These organizations have an 
equally strong interest in affirming the constitutionality of 
the statutes and regulations under review. For decades, 
they have concentrated their efforts on promoting equal 
opportunity for women in a variety of important areas, 
including family, employment, education, economic security, 
and healthcare. They have participated as counsel and

While women are presumptively eligible to participate in the 
DBE program, they are not presumptively eligible to participate in the 
SDB program. Compare 49 C.F.R. § 26.67(a) (2000) with 13 C.F.R. 
§ 124.1008(e) (2000) (incorporating 13 C.F.R. § 124.103 (2000)). Thus, any 
discussion of both race- and gender-conscious measures in this brief refers 
to the DBE program only.

Furthermore, Petitioner originally challenged only the race­
conscious provision of one particular provision of the SDB program— 
specifically, the use of a Subcontractor Compensation Clause (“SCC”) by 
a division of DOT. See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 
205-06 (1995) (“Adarand / ”)• DOT has since discontinued the use of this 
particular clause, see Lodging of Women Amici (“Lodging”) at 13 (filed 
concurrently herewith), and Petitioner has not presented any evidence or 
provided any argument that this clause will ever be reinstated. See Pet.’s 
Br. (passim). Instead, Petitioner has attempted to broaden its challenge 
before this Court, recasting it as a general attack on the entire SDB 
program. See Pet.’s Br. at 12-17 & nn.9-11. This program consists of a 
number of contractual clauses authorized by statute and DOT regulations. 
See 15 U.S.C. § 637(d)(4)-(6); see also 48 C.F.R. § 19.705-7 et seq. (2000) 
(liquidated damages); 48 C.F.R. § 19.1101 et seq. (2000) (price evaluation 
adjustments); 48 C.F.R. § 19.1201 et seq. (2000) (evaluation factors); 48 
C.F.R. § 19.1203 (2000) (monetary incentives). The Tenth Circuit, 
however, found that Petitioner only had standing to challenge the use of 
the SCC and related provisions, which were the subject of the original 
complaint. See Adarand Constructors, Inc. v. Slater, 228 F.3d 1147,1160 
(10th Cir. 2000) (“.Adarand IIP’).

For this reason, the Women Amici respectfully request that the 
Court limit its review to only the SCC and related provisions. However, 
in the event that the Court is inclined to consider the merits of 
Petitioner’s other arguments, the Women Amici have briefed these issues 
for consideration. See Sections VIII - IX infra.



3

appeared as amici curiae in numerous cases before this 
Court and the Circuit Courts of Appeal.

Although the Women Amici believe that all of the 
relevant provisions of these statutes and regulations satisfy 
both strict scrutiny, which applies to race-conscious 
programs, as well as intermediate scrutiny, which applies to 
gender-based classifications, we nevertheless note that 
Petitioner’s original complaint concerned only the use of one 
particular race-conscious measure which is no longer 
employed by DOT as p art of its affirmative action efforts in 
direct federal contracting. Indeed, Petitioner has never 
directly challenged the gender-conscious measures of any 
federal statute or regulation in this case. Thus, if the Court 
discerns a constitutional defect in any of the race-conscious 
aspects of the statutes or regulations currently under 
review, the Women Amici respectfully request that the 
Court limit its ruling accordingly, leaving the gender­
conscious remedies of any program undisturbed. Finally, 
while the Women Amici strongly endorse the statutory 
framework at issue, this brief focuses on the 
constitutionality of DOT’S regulations.3

SUMMARY OF THE ARGUMENT
Petitioner is challenging only the most recent 

versions of DOT programs which have yet to be applied to 
it. Consequently, the instant challenge is a facial one, and 
the statutory and regulatory provisions at issue must be 
upheld unless they cannot be applied constitutionally under 
any set of circumstances. Petitioner cannot make this 
showing.

At the time it enacted the challenged statutes, 
Congress had a strong basis in evidence for concluding that 
race and gender discrimination had impeded the entry of

Because only the current regulations are at issue, Adarand, 
Constructors, Inc. v. Mineta, 121 S. Ct. 1598 (2001), all future citations to 
the applicable regulatory provisions refer to those which are set forth in 
the latest version of the Code of Federal Regulations unless otherwise 
noted. 13 C.F.R. Part 124 (2000); 48 C.F.R. Part 19 (2000); 49 C.F.R. Part 
26 (2000).



4

minority- and women-owned firms into the transportation- 
related construction industry and prevented these firms 
from becoming competitively viable in that industry. In 
order to further the compelling interest of remedying this 
discrimination, Congress provided DOT with a broad and 
flexible statutory authorization to implement a number of 
regulatory provisions to assist minority- and women-owned 
businesses, including some measures which take race and 
gender into account. Consistent with the scope of its 
congressional authorization, DOT currently employs the 
race- and gender-conscious provisions of its affirmative 
action programs in only those regions of the country where 
there is a contemporaneous finding of discrimination within 
the construction industry and only to the extent necessary 
to remedy its effects. Because the statutory scheme is 
flexible enough to be implemented in a constitutional 
manner, it  survives both strict and intermediate scrutiny.

DOT’S regulations for the SDB and the DBE 
programs are likewise narrowly tailored to further the 
compelling interest of remedying race and gender 
discrimination. While both programs have a number of 
aspects tha t are relevant to this narrow tailoring analysis, 
the Court should pay particular attention to three 
components: (1) the process by which minorities, women and 
others become eligible to benefit from these programs; (2) 
the goals for achieving a certain level of contracting by 
minority- and women-owned firms; and (3) the geographic 
applicability of the programs. For each of these components, 
the statutory scheme provides DOT with sufficient 
flexibility to devise a narrowly tailored program to remedy 
discrimination that meets constitutional requirements, and, 
in fact, DOT has done so. DOT’s regulations further 
narrowly tailor the remedial provisions by limiting the time 
period for eligibility and by allowing persons who are not 
presumptively eligible to benefit from these programs under 
some circumstances. DOT’s regulations for both the SDB 
and DBE programs constitute a carefully crafted and



5

narrowly tailored effort to further the compelling interest in 
remedying discrimination.

Given the precise manner in which these regulations 
are designed to address the specific conditions of each 
locality where they operate, they are constitutional on their 
face, and there is no record of any unconstitutional 
implementation of any aspect of either the SDB or DBE 
program th a t is currently in effect or likely to be in effect in 
the future. Nor is there any evidence of any 
unconstitutional actions by recipients of federal grant funds 
under the DBE program. Thus, any claim that the new 
regulations will be applied in an unconstitutional manner is 
not ripe for review. Because DOT's regulations for both the 
SDB and DBE programs constitute a carefully crafted and 
narrowly tailored effort to further the compelling and 
important interests in remedying discrimination, they 
survive strict scrutiny.

For all of these reasons, the judgment of the Tenth 
Circuit Court of Appeals should be affirmed.

ARGUMENT
I. IN ORDER TO PREVAIL, PETITIONER

MUST ESTABLISH THAT THE STATUTES 
AND REGULATIONS CANNOT BE APPLIED 
IN A CONSTITUTIONAL MANNER UNDER 
ANY SET OF CIRCUMSTANCES.
I t is undisputed tha t DOT has discontinued the use 

of the particular contractual clause which initially gave rise 
to this lawsuit, see Lodging by A m id  Curiae Women First 
National Legislative Committee, et al. (“Lodging”) at 13 
(filed concurrently), and Petitioner makes no claim of injury 
from any DOT program currently in effect. Consequently, 
Petitioner’s challenge is a facial one. Thus, as in Fullilove v. 
Klutznick, 448 U.S. 489 (1980), all “doubts must be resolved 
in support of the...judgment” of Congress in this area, 448 
U.S. at 489, and the program can only be struck down if 
Petitioner can “establish tha t no set of circumstances exist 
under which the Act would be valid.” See, e.g., Rust v. 
Sullivan, 500 U.S. 173, 183 (1991) (noting further that the



6

‘“fact that [the regulations] might operate unconstitutionally 
under some conceivable set of circumstances is insufficient 
to render [them] wholly invalid”’) (quoting United States v. 
Salerno, 481 U.S. 739, 745 (1987)) (alteration in original). By 
definition, this is a “heavy burden” to bear, Salerno, 481 
U.S. a t 745, which cannot be successfully carried if “the 
regulations are both authorized by the Act [in question] and 
can be construed in such a manner that they can be applied 
to a set of individuals without infringing upon 
constitutionally protected rights.” Rust, 500 U.S. at 183. 
Given the facts of this case, Petitioner cannot make this 
showing.
II. CONGRESS AND DOT HAD A STRONG BASIS 

IN EVIDENCE FOR CONCLUDING THAT 
RACE AND GENDER DISCRIMINATION 
HAVE HARMED MINORITY- AND WOMEN- 
OWNED FIRMS IN TRANSPORTATION- 
RELATED GOVERNMENT CONTRACTING. 
When they adopted the statutes and regulations at 

issue, Congress and DOT both possessed the requisite 
‘“strong basis in evidence,”’ see City o f Richmond v. J.A. 
Croson Co., 488 U.S. 469, 500 (1989) (quoting Wygant v. 
Jackson Bd. o f Educ., 476 U.S. 267, 277 (1986)), for 
concluding that race and gender discrimination had 
harmed—and was continuing to harm—minority- and 
women-owned firms in the construction industry.4 As the

As Representative Holmes-Norton explained during the 1998 
congressional debate on the topic, there have been “at least 29 hearings 
on this subject between 1980 and 1995...and...an additional eleven [more] 
through the end of 1997....” 144 Cong. Rec. H3958 (May 22, 1998) 
(statement of Rep. Holmes-Norton). Indeed, few matters appear to have 
been more thoroughly evaluated by the national legislature. 
Furthermore, Congress has conducted and been presented with 
numerous disparity and other statistical studies, in addition to hearing 
countless personal testimonials, which all show that there is a serious 
problem of race and gender discrimination at all levels of the construction 
industry. Id. at H3958-59. The Department of Justice has summarized 
these extensive findings, which are far too voluminous to recount here, in 
the Federal Register. See 61 Fed. Reg. 26042,26050-63 (May 23,1996).



7

Fullilove Court found over twenty years ago, “Congress 
had [an] abundant historical basis from which it could 
conclude that traditional procurement practices, when 
applied to minority businesses, could perpetuate the effects 
of prior discrimination” in federal contracting. 448 U.S. at 
478. Unfortunately, due to the entrenched nature of 
discrimination in this industry, the evidentiary foundation— 
and overwhelming need—for congressional action lias only 
solidified with time. See, e.g., Section IV infra.

Congress has also found that women have been 
harmed by discrimination in their efforts to enter and 
compete in the transportation-related contracting arena. 
For example, women-owned firms have been excluded from 
contracting opportunities by the same “good old boy” 
network which has discriminated against minority firms. 
See, e.g., IS T E A ’s Race Based Set Asides After Adarand: 
Hearing Before the Subcomm. on the Constitution, 
Federalism, and Property Rights o f the Seriate Comm, on 
the Judiciary, 105th Cong., a t 117-23 (1997) (statement of 
Janet Schutt); see also H.R. Rep. No. 100-736, at 7-27, 27-57 
(1988); New Economic Realities: The Role o f Women 
Entrepreneurs, Hearing Before the House Comm, on Small 
Businesses, 100th Cong., a t 3-158 (1988). In addition, 
women-owned firms have historically earned only half of 
what comparable male-owned companies receive in this 
industry. See, e.g., 144 Cong. Rec. S1409 (Mar. 5, 1998) 
(statement of Sen. Kerry); see also id. at S1490 (Mar. 6, 
1998) (statement of Sen. Lautenberg) (noting the additional 
problems women-owned firms have in obtaining financing 
despite their “lower rate of loan delinquency”); accord H.R. 
Rep. No. 100-736, at 13-18 (same). It was for these reasons 
that women were designated as a presumptively 
disadvantaged group for purposes of the DBE program. See 
S. Rep. No. 100-4, at 11 (1987) (noting how “barriers still 
remain, preventing minorities and women from successfully 
competing in the industry”); H.R. Rep. No. 100-955, at 9-17 
(1988) (discussing the historical practices of gender 
discrimination in the construction, lending, and bonding



8

industries); see also 134 Cong. Rec. 27816-21 (Oct. 3, 1988) 
(referring to the findings of H.R. Rep. No. 100-736).

While Petitioner attempts to find fault with selected 
studies and other limited pieces of evidence considered by 
Congress, see P e t ’s Br. at 32-33, the record supporting the 
congressional findings in this area is so substantial tha t the 
current challenge to only a limited number of studies cannot 
undermine the conclusion that Congress had a strong basis 
in evidence to enact the race- and gender-conscious 
provisions at issue. A t a minimum, Congress is entitled to 
consider competing studies, in addition to other evidence, 
and come to a conclusion regarding the weight to be given to 
each. See Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180, 199 
(1997) (explaining that “[t]he Constitution gives to Congress 
the role of weighing conflicting evidence in the legislative 
process” and that, as a result, the courts “must give 
considerable deference...to Congress’ findings and 
conclusions”).

Moreover, DOT is entitled to rely on the evidence 
available to Congress as well as Congress’ subsequent 
findings based on this evidence. DOT may also rely on the 
evidence which it collected when carrying out its statutory 
authority to implement race- and gender-conscious 
programs to remedy the discriminatory practices that 
Congress found within the construction industry. See, e.g., 
GAO, Report to Congressional Committees: Disadvantaged 
Business Enterprises, Critical Information is Needed to 
Understand Program Impact 38-40 (June 2001) (noting the 
decline in minority and women contracting when Minnesota 
and Louisiana canceled their DBE programs). Because the 
body of evidence collected by Congress and DOT in this area 
is so overwhelming, it is clear DOT also had sufficient 
evidence upon which to act.
III. THE NARROW TAILORING ANALYSIS

EXAMINES SEVERAL FACTORS. IT IS NOT
A SINGLE, RIGID TEST.
In determining whether a race-conscious remedy is 

narrowly tailored to serve a compelling governmental



9

interest, this Court has “look[ed] to several factors, 
including the necessity for the relief and the efficacy of 
alternate remedies; the flexibility and duration of the relief, 
including the availability of waiver provisions; the 
relationship of the numerical goals to the relevant labor 
market; and the impact of the relief on the rights of third 
parties.” United States v. Paradise, 480 U.S. 149,171 (1987); 
see also Adarand 1,515 U.S. at 237-38 (also asking “whether 
there was ‘any consideration of the use of race-neutral 
means to increase minority business participation’ in 
government contracting or w hether the  program was 
appropriately limited such that it “will not last longer than 
the discriminatory effects it is designed to eliminate.”’) 
(quoting Croson, 488 U.S. at 507; Fullilove, 448 U.S. a t 513).

While rigorous, this calculus does “not require[] 
remedial plans to be limited to the least restrictive means of 
implementation.” Fullilove, 448 U.S. a t 508; see also Bush v. 
Vera, 517 U.S. 952, 977 (1996) (“rejeet[ing], as impossibly 
stringent, the District Court’s view of the narrow tailoring 
requirement, that ‘a district must have the  least possible 
amount of irregularity in shape, making allowances for 
traditional districting criteria’”) (citation omitted); accord 
Board of Trustees o f the State Univ. o f New York v. Fox, 492 
U.S. 469, 478 (1989) (“In requiring [a regulation] to be 
‘narrowly tailored’..., we have not insisted th a t there be no 
conceivable alternative, but only tha t the  regulation not 
burden substantially more speech than is necessary to 
further the government’s legitimate interests.’”) (citations 
omitted). Put differently, “a plan need not be limited to the 
remedying of specific instances of identified discrimination 
for it to be deemed sufficiently ‘narrowly tailored’....” 
Wygant, 476 U.S. at 287 (O’Connor, J., concurring). Instead, 
as the Bush Court explained, the government is afforded “a 
limited degree of leeway” or flexibility when acting to 
further a compelling interest. 517 U.S. a t 977. This tailoring 
requirement is even further relaxed when a gender­
conscious program is at issue. See, e.g., N guyen v. INS, 121 
S. Ct 2053, 2059 (2001) (explaining that, under intermediate



10

scrutiny, the measure m ust be substantially related to an 
important government interest) (relying on, inter alia, 
United States v. Virginia, 518 U.S. 515, 533 (1996) (“V M F )).

Thus, neither strict nor intermediate scrutiny is 
intended to be “fatal in fact” by establishing an impossibly 
high standard which no program could ever meet. See 
Adarand I, 515 U.S. a t 237; Fullilove, 448 U.S. a t 519 
(Marshall, J., concurring); see also VMI, 518 U.S. a t 533-34. 
Instead, the purpose of this analysis is to “smoke out” 
illegitimate uses of race or gender “by assuring th a t the 
legislative body is pursuing a goal important enough to 
w arrant use of a highly suspect tool.” Croson, 488 U.S. at 
493; accord VMI, 518 U.S. a t 532-36. Because Congress and 
DOT were pursuing such a goal, the statutes and 
regulations at issue are constitutional.
IV. CONGRESS ADOPTED THE CURRENT 

PROGRAM ONLY AFTER CONSIDERING  
RACE- AND GENDER-NEUTRAL  
ALTERNATIVES.
As Justice Powell noted in Fullilove, when Congress 

first acted “in 1977, it knew th a t other remedies had failed to 
ameliorate the effects of racial discrimination in the 
construction industry. Although the problem had been 
addressed by antidiscrimination legislation, executive action 
to remedy employment discrimination in the construction 
industry, and federal aid to  minority businesses, the fact 
remained tha t minority contractors were receiving less than 
1% of federal contracts.” 448 U.S. at 511 (Powell, J., 
concurring); see also Croson, 488 U.S. a t 507 (noting 
Fullilove’s finding th a t “Congress had carefully examined 
and rejected race-neutral alternatives before enacting the 
MBE set-aside”).

Twenty years later, in 1998, at the time it approved 
DOT’s continued affirmative action efforts, Congress again 
considered race- and gender-neutral programs and found 
them to be inadequate. Most notably, Congress considered 
the results when States dismantled their affirmative action 
programs and simply relied on the marketplace to determine



11

who received a given contract. See, e.g., 144 Cong. Rec. 
S1401, S1404, S1426 (Mar. 5, 1998) (statements of Sens. 
W arner, Baueus, and Domenici). In these instances, 
participation by women and minorities in State contracting 
decreased dramatically, frequently dropping to or close to 
zero. See, e.g., id. at S1409, S1421 (statements of Sens. 
Kerry and Moseley-Braun). For example, less than one year 
after Michigan abandoned its minority contracting program, 
“minority-owned businesses were completely shut out of the 
State highway construction projects,” and “the percentage 
of highway dollars going to [these] businesses fell to zero.” 
Id. at S1409, S1404 (statements of Sens. Kerry and Baueus). 
However, a t the same time, participation by women and 
minorities in contracting opportunities through DOT’s 
affirmative action program stood at nearly 13 percent. Id. 
This disparity repeated itself across the country, indicating 
th a t minority firms which were ready, willing, and able to 
perform government contract work in this area were 
nevertheless being impermissibly shut out of these 
opportunities. Id. at S1401, S1404, S1409, S1420-21, S1426 
(statements of Sens. Warner, Baueus, Kerry, Moseley- 
Braun, and Domenici). Based on this and the other evidence 
available to it, Congress could reasonably and permissibly 
conclude tha t race- and gender-neutral measures standing 
alone would not simply fail to cure the problem of 
discrimination within the construction industry but, worse, 
actually work to exacerbate it.

Furthermore, when Congress authorized DOT to use 
race- and gender-conscious programs, it was aware that 
DOT would first attempt to implement these programs in a 
race- and gender-neutral fashion, and DOT has in fact done 
so. See id. a t S1403, S1409, S1425 (statement of Sens. 
Baueus, Kerry, and Domenici); see also Section VI infra. 
These are additional factors which demonstrate the narrow 
tailoring of the SDB and DBE programs. C f Paradise, 480 
U.S. a t 200-01 (O’Connor, J., dissenting) (emphasizing the 
need to consider “available alternative remedies”).



12

V. TH E PROCESS OF DETERM INING
EL IG IB ILITY  FOR THE SDB AND DBE
PROGRAMS IS NARROWLY TAILORED.
After considering a substantial body of evidence, 

Congress found that invidious race and gender 
discrimination had a particularly detrimental effect on 
certain groups within our society in regard to their ability 
and efforts to engage in government contracting. See 
Section II supra. Congress therefore determined th a t firms 
owned and controlled by “socially and economically 
disadvantaged” individuals should be eligible for certain 
benefits in the contracting process. This judgm ent is 
reflected in a statutory provision which presumes tha t 
certain groups are eligible to participate in the SDB and 
DBE programs administered by DOT. See 15 U.S.C. 
§ 637(d)(3)(C) (covering “Black Americans, Hispanic 
Americans, Native Americans, Asian Pacific Americans, and 
other minorities, or any other individual found to be 
disadvantaged by the [Small Business] Administration”). 
This presumption, as administered by DOT, provides the 
regulatory framework for the eligibility determinations in 
both the SDB and the DBE program. 48 C.F.R. § 19.001 
(incorporating by reference 13 C.F.R. P art 124); 49 C.F.R. 
§ 26.67(a). DOT has adopted a number of regulations to 
ensure that the presumption is carefully crafted to 
accomplish the goal of remedying discrimination without 
placing an undue burden on innocent, non-minority fir m s .

A. The Presumption Is Rebuttable.
The statutory scheme affords DOT considerable 

flexibility in determining how to apply the presumption of 
eligibility. Although the statute “presume[s]” tha t members 
of certain minority groups are qualified to participate in 
either the SDB or DBE programs, 15 U.S.C. § 637(d)(3)(C), 
this presumption is a rebuttable one. As Petitioner’s own 
authority indicates, this is the plain meaning of the term . 
See, e.g., 1 Weinstein’s Federal Evidence § 301.02[1] (2d ed. 
2000) (“[I]f a basic fact...is established, then the fact-finder 
m ust accept that the presumed faet...has also been



13

established, unless the 'presumption is rebutted ”) (emphasis 
added); accord 2 McCormick on Evidence § 344 (5th ed. 
1999) (adopting the common meaning of the term  
“presumption” which “denotes a rebuttable presumption”). 
I t  is also the meaning which Congress understood when it 
most recently considered the matter. See, e.g., 144 Cong. 
Rec. H3960 (May 22, 1998) (statement of Rep. Holmes- 
Norton) (“The presumptions of social and economic 
disadvantage are...rebuttable, not absolute.”); accord id. at 
S1402 (Mar. 5,1998) (statement of Sen. Baucus) (noting that 
“[i]t is only a presumption, a presumption tha t can be 
overcome....”).

In accordance with Congress’ delegation of 
authority, DOT has promulgated regulations which are 
entirely consistent with this statutory framework. See 49 
C.F.R. § 26.67(a) (requiring the certifying authority to 
“rebuttably presume” that members of certain groups are 
qualified to participate in the program); see also 13 C.F.R. 
§ 124.103(b) (explaining that it is a “rebuttable presumption” 
which operates in these instances). These provisions were 
adopted in accordance with DOT’S rule-making authority in 
this area, see generally 64 Fed. Reg. 5096 (Feb. 2,1999), and 
Petitioner has made no showing tha t the challenged 
regulations are in any way “proeedurally defective, 
arbitrary  and capricious in substance or manifestly contrary 
to the statute.” United States v. Mead Corp., 121 S. Ct. 
2164, 2171 (2001); accord Chevron U.S.A. Inc. v. Natural 
Resources Defense Council, Inc., 467 U.S. 837, 844 (1984) 
(same).

Under the current regulations, the mere process of 
applying for admission to the SDB and DBE programs 
triggers an extensive, in-depth, onsite review. See Sections 
V.B -  V.D infra. In the process, applicants are required to 
present evidence that they truly qualify for the program. 49 
C.F.R. § 26.67(a); 13 C.F.R. §§ 124.1002, 124.1008. The 
heightened administrative scrutiny paid to these 
applications further tailors the programs a t issue. Indeed, 
this searching review addresses Petitioner’s argument that



14

individuals will be approved or rejected for the programs 
based solely on their race or gender. See P e t ’s Br. a t 41-45. 
For example, under the DBE program, a certifying 
authority “may, a t any time, start a proceeding to determine 
whether [a] presumption should be regarded as rebutted” if 
there is a “reasonable basis to believe that an individual who 
is a member of one of the designated groups is not, in fact, 
socially and/or economically disadvantaged.” 49 C.F.R. 
§ 26.67(b)(2). Likewise, if “there is reasonable cause to 
believe that a currently certified firm is ineligible,” either 
the certifying authority or DOT may ‘initiate a proceeding 
to remove the firm’s certification.” 49 C.F.R. § 26.87(b)-(c). 
Also, “[a]ny person may file...a w ritten complaint alleging 
that a currently-certified firm is ineligible and specifying the 
alleged reasons why....” See id. § 26.87(a).6 Similarly, under 
the SDB program, “the  contracting officer or the [Small 
Business Administration] may protest the disadvantaged 
status of a proposed subcontractor.” 48 C.F.R. 
§ 19.703(a)(2); accord 13 C.F.R. § 124.1008(e); see also id. 
§ 124.1016(a) (allowing the Small Business Administration to 
reconsider an SDB’s status “whenever it receives credible 
information calling into...question a firm’s eligibility”). 
“Other interested parties may [also] submit information to 
the contracting officer or the SBA in an effort to persuade 
[them] to initiate a protest.” 48 C.F.R. § 19.703(a)(2); accord 
13 C.F.R. § 124.1017. These regulations ensure tha t only 
qualified firms are admitted into the SDB and DBE 
programs.

Pursuant to 49 C.F.R. § 26.87(f), a firm can have its certification 
revoked if: (1) “[c]hanges in the firm’s circumstances since [its] 
certification-render the firm unable to meet the eligibility standards;” (2) 
“[ijnformation or evidence not available...at the time the firm was 
certified” has since come to light; (3) it is discovered that “[i]nformation... 
was concealed or misrepresented by the firm in previous certification 
actions;” (4) there is “[a] change in certification standards or 
requirements by the [DOT];” or (5) a “documented finding that [the] 
determination to certify the firm was factually erroneous.” 49 C.F.R. 
§ 26.87(f). The SDB program contains similar regulations. 13 C.F.R. 
§ 124.1016.



15

B. Program Eligibility Is Limited To Persons 
Who Are Economically Disadvantaged.

Additionally, in order to limit benefits of the SDB 
and DBE programs to only those who need assistance in 
becoming competitively viable, DOT has imposed a financial 
cap on applicants to and participants in these programs. 13
C.F.R. §§ 124.1002(c), 124.1008(e)(1); 49 C.F.R. § 26.67(b). 
Thus, if an “an individual’s personal net worth exceeds 
$750,000, the individual is no longer eligible for participation 
in the program and cannot regain eligibility by making an 
individual showing of disadvantage.” 49 C.F.R. § 26.67(b)(4); 
accord 13 C.F.R. §§ 124.1002(c), 124.1008(e)(1). Moreover, 
the current DBE and SDB programs impose overall size 
limitations on the firms themselves, which prevents 
businesses that have been competitively successful from 
taking advantage of the program. 49 C.F.R. § 26.65 
(incorporating the standards set forth in 13 C.F.R. P art 
121); 13 C.F.R. § 124.1002(b) (same). While Petitioner 
claims that these financial caps could be lower to exclude 
more people from the program, see Pet.’s Br. a t 8 n.4, this 
ceiling is a reasonable approach to balancing the goals of 
excluding financially successful firms while including firms 
th a t have some realistic chance of success in the market. As 
DOT explained when it promulgated its final rule, “[u]sing a 
figure any lower...could penalize success and make growth 
for DBEs difficult (since, for example, banks and insurers 
frequently look to the personal assets of small business 
owners in making lending and bonding decisions).” 64 Fed. 
Reg. at 5117-18.

C. The Different Treatment Resulting From 
The Presumption Is Limited To The 
Burden Of Proof Placed On Applicants 
Who Are All Subjected To An 
Individualized Inquiry.

Pursuant to 49 C.F.R. § 26.67(a)(1), any business 
seeking to be certified as a DBE “must...submit a signed, 
notarized certification that each presumptively 
disadvantaged owner is, in fact, socially and economically



16

disadvantaged.” In addition, “each individual owner of a 
firm applying to participate as a DBE...[must] submit a 
signed, notarized statement of personal net worth, with 
appropriate supporting documentation.” Id. § 26.67(a)(2)(i). 
The SDB program imposes similar requirements. See 13 
C.F.R. § 124.1008(a), (e). All of this personal and financial 
information m ust be included in an application for 
certification, which is then reviewed by the appropriate 
authority or agency in order to determine whether an 
applicant qualifies for the program. See 49 C.F.R. 
§ 26.83(e)(2)-(3); id. § 26.83(c); see also 13 C.F.R. § 124.1008. 
Thus, each applicant, w hether or not he or she is entitled to 
the presumption, is subjected to an individualized inquiry 
regarding social and economic disadvantage.6

Moreover, individuals who are not presumptively 
eligible to participate in the DBE and SDB programs may 
nevertheless still qualify for certification. 49 C.F.R. 
§ 26.67(d); 13 C.F.R. § 124.1008(e)(2). In these instances, 
these firms only “ha[ve] the burden of demonstrating..., by a 
preponderance of the evidence, tha t the individuals who own 
and control it  are socially and economically disadvantaged.” 
49 C.F.R. § 26.67(d); accord 13 C.F.R. § 1008(e)(2) 
(incorporating 13 C.F.R. § 124.103(c)). Thus, the only 
distinction between persons who qualify for the 
presumption and those who do not is the burden of proof 
placed upon them  to show they have been harmed by 
discrimination.

This distinction is not simply an attem pt to reduce 
the administrative burden of identifying persons who have 
been the victims of discrimination. Instead, it  represents a

As an additional incentive to provide accurate and truthful 
information in these submissions, any misrepresentations in the 
application process may result in not only a denial of certification but also 
the imposition of civil or criminal penalties. See 49 C.F.R. § 26.73(b)-(e); 
13 C.F.R. § 124.1011; see also 15 U.S.C. § 645(d); 18 U.S.C. § 1001; 31 
U.S.C. § 3729; cf. 61 Fed. Reg. at 26045 (advocating increased 
enforcement of the civil and criminal provisions of federal law which 
prohibit the making of false or fraudulent statements to the government).



17

reasonable accommodation among a number of policy goals. 
After considering substantial evidence, Congress concluded 
tha t discrimination in the construction industry had affected 
women and minorities most severely. Like Title VIFs 
burden-shifting framework, the presumption enables 
members of these groups to address the particularly 
"elusive factual question of intentional discrimination.” See 
Texas Dep’t o f Community Affairs v. Burdine, 450 U.S. 248, 
252-56 & n.8 (1981). At the same time, program benefits are 
not available to women and minorities who, given their 
financial success, have not been adversely affected by 
discrimination. Basing eligibility on a rebuttable 
presumption of disadvantage, coupled with a limitation on 
personal ne t worth, accomplishes these goals.

Congress also gave DOT the authority to provide 
benefits to others who had suffered because of other forms 
of discrimination, such as disability or poverty, but did not 
presume these effects for individuals with certain 
characteristics. 49 C.F.R. § 26.67(d); 13 C.F.R. § 1008(e)(2). 
The difference in the burden of proof reflects a 
congressional judgment about the severity and 
pervasiveness of discrimination against various groups in 
transportation-related construction and the likely effect of 
this discrimination in discouraging contracting 
opportunities.

D. The Presumption Applies To Groups Found By 
Congress To Have Been Harmed By 
Discrimination.

Petitioner argues that the presumption is 
unconstitutionally over-broad because of its ‘“random 
inclusion”’ of groups which ‘“may never have suffered from 
discrimination in the construction industry.’” Pet.’s Br. at 
43 (citing Croson, 488 U.S. at 506). However, unlike the 
situation in Croson where “[t]here [wa]s absolutely no 
evidence of past discrimination against Spanish-speaking, 
Oriental, Indian, Eskimo, or Aleut persons in any aspect of 
the Richmond construction industry,” 488 U.S. at 506 
(emphasis in original), Congress and DOT had a strong basis



18

in evidence for concluding that the groups of individuals 
identified in both the statute and the regulations have 
suffered discrimination in efforts to enter and compete in 
transportation-related construction. See Section II supra. 
DOT has carried out its responsibility to implement this 
presumption by promulgating reasonable regulations that 
identify, in the most practical and least intrusive way, 
persons within the groups set out in the statute. These 
regulations also list nationalities that correspond to the 
groups identified in the statute. Compare 15 U.S.C. 
§ 637(d)(3)(C) with  13 C.F.R. § 124.103(b) and 49 C.F.R. 
§ 26.67(a). Using a person’s nationality in this manner is 
constitutionally permissible as a practical response to the 
difficulty tha t may be involved in determining an applicant’s 
race.
VI. DOT REQUIRES THE USE OF RACE- AND  

GENDER-NEUTRAL ALTERNATIVES 
BEFORE RACE OR GENDER-CONSCIOUS 
REMEDIES CAN BE IMPLEMENTED.
Both the DBE and SDB programs require 

consideration of race- and gender-neutral means before 
engaging in race- or gender-conscious remedies. The DBE 
program requires the States to “meet the maximum feasible 
portion of [their] overall goal by using race-neutral means of 
facilitating DBE participation.” 49 C.F.R. § 26.51(a). These 
measures include: “unbundling large contracts to make 
them more accessible to small businesses;” “[providing 
technical assistance;” placing DBEs and other small 
contractors on mailing lists for bids; ensuring that prime 
contractors receive lists of all potential subcontractors; 
“[ijmplementing a supportive services program to develop 
and improve immediate and long term  business 
management, record keeping, and financial and accounting 
capability;” “[establishing a program to assist new, start-up 
firms;” and assisting small companies in “developing] their 
capability to utilize emerging technology [to] conduct 
business through electronic media.” Id. § 26.51(b)(l)-(9). In 
addition, the regulations set forth a number of race-neutral



19

remedies that are designed to address the historical
discrimination practiced by the lending and bonding 
industries. See id. § 26.51(b)(2) (discussing, inter alia, 
“simplifying the bonding process” and “reducing bonding 
requirements”); see also id. § 26.29 (ensuring “prompt 
payment” to subcontractors).

Similarly, the SDB regulations assume “that 
agencies will continue such outreach and technical
assistance efforts at all times, so that race-conscious 
measures will be used only to the minimum extent
necessary to achieve legitimate objectives.” 61 Fed. Reg. at 
26048-49 (listing a number of potential race-neutral
programs, such as a surety bond program for small 
contractors, continued efforts to eliminate the impact of 
surety costs from bids, expanded mentor-protege programs, 
and the cessation of “any practices that disproportionately 
affect opportunities for SDBs and do not serve a valid and 
substantial procurement purpose”). As the Executive 
Branch has stated, it intends that “[t]he maximum use of 
such race neutral efforts will reduce to a minimum the use of 
race-conscious measures....” Id. at 26049.

Although these measures are not expressly defined 
as “gender-neutral,” they are intended to benefit all small 
businesses, regardless of the race or gender of their owners. 
VIL TH E PROGRAMS LAST NO LONGER THAN 

NECESSARY.
I t  is undisputed that the statutory provisions 

Petitioner challenges will automatically expire in 2004 
unless Congress determines that it is necessary to 
reauthorize them. See Transportation Equity Act for the 
21st Century, Pub. L. 105-178, § 1101(a), 112 Stat. 107, 111 
(1998) (“TEA-21”). Thus, as in Fullilove, “[i]t will be 
necessary for Congress to re-examine the need for a race- 
conscious remedy before it extends or re-enacts” the 
statute. 448 U.S. at 513 (Powell, J., concurring) (also noting 
the importance of a “temporary-remedy [which] ensures 
that a race-conscious program will not last longer than the 
discriminatory effects it was designed to eliminate”). As the



20

record demonstrates, both Congress and the Executive 
Branch have undertaken substantial reviews of the need for 
these programs and the appropriateness of their provisions. 
Indeed, as a result of this ongoing review process, the 
current versions of the statutes and regulations are not the 
same ones first challenged over twelve years ago. They 
have undergone significant changes, in large part to comport 
with constitutional requirements.

Under the current SDB and DBE regulations, a 
qualified business can only be certified as disadvantaged for 
a period of three years, 49 C.F.R. § 26.83(h); 13 C.F.R. 
§ 124.1014(a), and these firms must demonstrate on a 
periodic basis tha t they remain qualified to participate in the 
program. 49 C.F.R. § 26.83(j); see also 13 C.F.R. 
§ 124.1016(b) (requiring an SDB to “report within 10 days... 
any changes in ownership and control or any other 
circumstances which could adversely effect its eligibility as 
an SDB”). Although a business can apply to be re-certified 
as a DBE or SDB, it m ust again show that it meets all of the 
eligibility criteria. 49 C.F.R. § 26.83; 13 C.F.R. § 124.1014(e).
VIII. THE A SPIRATIO N A L GOALS ARE 

NARROWLY TA ILO RED .
As we have argued, Petitioner has no standing to 

challenge the goals employed by the SDB and DBE 
programs to increase contracting by minority- and women- 
owned firms. See Note 2 supra. However, should the Court 
reach the m atter, it  is im portant to note th a t these flexible, 
aspirational goals have nothing in common with the “rigid 
racial quota” struck down in Croson, 488 U.S. a t 499. First, 
they are not mandatory. 49 C.F.R. § 26.41; 48 C.F.R. § 
19.705-4. They are also subject to periodic adjustment, 
specifically tailored to each geographical region where they 
apply, and have no application a t all in cases where there are 
no demonstrated effects of discrimination. 49 C.F.R. § 26.45; 
64 Fed. Reg. 52806,52807 (Sept. 30,1999).

DOT has implemented its SDB program in 
conformity with the congressional policy codified in the 
Small Business Act, which sets a “[g]ovemment-wide goal



21

for participation by small business concerns owned and 
controlled by socially and economically disadvantaged 
individuals” a t “not less than 5 percent of the total value of 
all prime contract and subcontract awards for each fiscal 
year.” 15 U.S.C. § 644(g)(1). While this aspirational goal 
applies to the entire executive branch, DQT’s goal is 
established only after the Secretary of Transportation 
consults with the Small Business Administration in order to 
ensure that the target number “realistically reflect[s] the 
potential of...small business concerns owned and operated 
by socially and economically disadvantaged individuals...to 
perform such eontracts...and subcontracts....” Id. § 644(g)(2). 
There is no statutory or regulatory provision requiring DOT 
to meet this goal.

The DBE goal is derived from TEA-21, in which 
Congress established a 10 percent goal for the participation 
of minorities and women in all federally funded contracting. 
Pub. L. 105-178, § 1101(b)(1), 112 Stat. 107, 113 (“Except to 
the extent that the Secretary [of Transportation] 
determines otherwise, not less than 10 percent of the 
amounts available for any program...shall be expended with 
small business concerns owned and operated by socially and 
economically disadvantaged individuals.”). This goal is also 
an “aspirational” one which can be adjusted upwards or 
downwards depending upon the circumstances. 49 C.F.R. 
§§ 26.41,26.43.

In using grants funds pursuant to this program, the 
States are specifically instructed th a t they may not blindly 
embrace the 10 percent figure as the ir own goal. 49 C.F.R. 
§§ 26.41(b), 26.45(b). Instead, a S tate’s “overall goal must be 
based on demonstrable evidence of the availability of ready, 
willing and able DBEs relative to all businesses [which are] 
ready, willing and able to participate on...DOT assisted 
contracts....” 49 C.F.R. § 26.45(b). “The goal must reflect 
[the State’s] determination of the level of DBE participation 
[that the State] would expect absent the effects of 
discrimination.” Id. DOT has provided the States with a



22

great deal of guidance as to how this goal should be 
calculated.

Each State must “determin[e] a base figure for the 
relative availability of DBEs,” through any number of 
approved ways, including the use of DBE directories and 
census data, bidders fists, disparity studies, or any other 
methodology which is “based on demonstrable evidence of 
local m arket conditions and...designed to ultimately attain a 
goal tha t is rationally related to the relative availability of 
DBEs in [the relevant] market.” 49 C.F.R. § 26.45(c)(l)-(5). 
DOT has provided the States with ample direction on how to 
use these various methods. See, e.g., 49 C.F.R. § 26.45; see 
also 64 Fed. Reg. at 5109-12.

Once a State has calculated its baseline figure, it 
“must [then] examine all of the evidence available in [its] 
jurisdiction to determine what adjustment, if any, is needed 
...in order to arrive a t [the] overall goal.” 49 C.F.R. 
§ 26.45(d). When making this adjustment, the State should 
take into account a variety of factors, including “[t]he 
current capacity of DBEs to perform work in [the] DOT- 
assisted contracting program, as measured by the volume of 
work DBEs have performed in recent years,” “[e]videnee 
from disparity studies...to the extent that it is not already 
accounted for in [the] base figure,” and “evidence from 
related fields tha t affect the opportunities for DBEs to form, 
grow and compete,” such as “[statistical disparities in the 
ability of DBEs to get the financing, bonding and insurance 
required to participate in [the] program.” Id. § 26.45(d)(1)- 
(2). While the States are also allowed to “make an 
adjustment to [their] base figure to account for the 
continuing effects of past discrimination...or the effects of an 
ongoing DBE program, th[is] adjustment must be based on 
demonstrable evidence tha t is logically and directly related 
to the effect for which the adjustment is sought. Id. 
§ 26.45(d)(3).

Moreover, the regulations allow the States to use 
contract goals to meet only that portion of their overall goal 
which they cannot achieve through race- and gender-neutral



23

means, 49 C.F.R. § 26.51(e), and provide tha t race- and 
gender-conscious contracting goals should not he used if the 
State can achieve all of its goal through race- and gender- 
neutral means. 49 C.F.R. § 26.51(d)-(f). Furthermore, a 
State “must reduce or eliminate the use of [its] contract 
goals” when it “determine[s] that [it] will exceed its overall 
goal” given the means already employed. Id. § 26.51(f)(2); 
see also id. § 26.51(f)(4) (directing the States to “reduce 
[their] use of contract goals proportionately” when they 
exceed their overall goals). In fact, when a State ‘‘meets or 
exceeds [its] overall goals for two consecutive years” solely 
through the use of race-neutral means, then the State need 
“not set any contract goals on any contracts in the next 
year.” Id. § 26.51(f)(3). Instead, the State may simply 
“continue using only race-neutral means to meet [its] overall 
goals....” Id. A more narrowly tailored process is difficult to 
envision.
IX. THE PROVISIONS GOVERNING THE

GEOGRAPHICAL SCOPE OF THE
PROGRAMS ARE NARROWLY TAILORED.
Petitioner also lacks standing to challenge a large 

number of the contractual provisions which comprise the 
SDB and DBE programs. See Note 2 supra. However, 
should the Court reach the matter, both the SDB and the 
DBE programs contain regulations which limit the 
geographic applicability of their race-conscious measures to 
only those areas where there is current evidence of 
discrimination. See 61 Fed. Reg. at 26045-48; see also 49 
C.F.R. § 26.45(b). The geographic scope of the SDB 
program is determined by “benchmarking,” a statistical 
“methodology...designed to ensure that [the benefits of the 
SDB program] are narrowly tailored to remedy 
discrimination.” 63 Fed. Reg. 35716, 35716 (June 30, 1998). 
Benchmarking “measures gaps in contracting awards to 
SDBs that are unrelated to size and age differences with 
non-SDBs.” Id. a t 35718 n.10. Furthermore, the 
benchmarking analysis is reviewed annually to determine if 
any revisions are required and readjusted every three



24

years, 64 Fed. Reg. a t 52806, so tha t the Government may 
continually tailor the race-conscious aspects of the program 
to the specific needs of each region.

Benchmarking thus ensures that the provisions of 
the SDB program Petitioner challenges will be employed 
only “when annual analysis of actual experience in 
procurement indicates tha t minority contracting falls below 
levels that would be anticipated absent discrimination.” 61 
Fed. Reg. at 26049. Based on the current benchmarking 
analysis, none of the race-conscious aspects of the SDB 
program for transportation-related construction contracts 
are available in regions making up forty-two states, 
including Petitioner’s state of Colorado. See 64 Fed. Reg. at 
52807. The race-conscious aspects of the SDB program in 
this industry are currently limited to eight states located 
primarily in the Mid-South, where the Government has 
concluded tha t disadvantaged businesses are being 
significantly under-utilized given their overall concentration 
in the marketplace. See 63 Fed. Reg. at 35718; see also 64 
Fed. Reg. at 52807.

Thus, Petitioner is challenging the constitutionality 
of provisions that have never been applied to it, which are 
not currently in effect in its area of operation, and which will 
not be applied to it in the future unless the Executive 
Branch concludes th a t minority firms are being used so far 
below their m arket capacity in the Rocky Mountain region 
th a t remedial efforts are warranted. Far from undermining 
the evidentiary basis for the compelling interest in 
remedying discrimination, as Petitioner suggests, the 
benchmarking studies show that DOT’s efforts are narrowly 
tailored to regions of the country where the effects of 
discrimination have been demonstrated.7

In any event, Petitioner has introduced no evidence challenging 
the methodology employed by the Executive Branch in making its 
benchmark determinations. The issue was not presented to the District 
Court in 1996 since the Government had only just commissioned the 
program. 61 Fed. Reg. at 26045-47. Nor did Petitioner raise the issue 
with the Tenth Circuit, even though the first benchmarking reports were



25

DOT regulations for the DBE program impose 
analogous requirements upon the recipients of federal funds, 
obligating them to analyze thoroughly the market conditions 
in their locality in order to set an aspirational goal which 
accurately reflects the number of “ready, willing and able 
DBEs” in the region. 49 C.F.R. § 26.45(b). As previously 
explained, these regulations limit the geographic scope of 
the DBE program to only those areas where there is 
“demonstrable evidence” of current discrimination. 49 
C.F.R. § 26.45(b). The DBE regulations clearly contemplate 
th a t state and local governments will not employ race- or 
gender-conscious measures in their areas if there are no 
measurable disparities attributable to discrimination there. 
49 C.F.R. §§ 26.45,26.51.

More importantly, the geographical limitations 
imposed by both the SDB and DBE programs further tailor 
the use of the presumption of disadvantage. Specifically, the 
challenged regulations limit the use of race- or gender­
conscious measures to only those geographical areas where 
there is a measurable disparity in current government 
contracting awards that can be attributed to discrimination. 
61 Fed. Reg. a t 26045-48; 49 C.F.R. § 26.45(b). By definition, 
it is precisely those firms which have been certified as SDBs 
and DBEs in these areas tha t will have experienced the 
effects of these discriminatory practices. Thus, the 
regulations ensure th a t only those firms which are currently 
suffering from discrimination will benefit from the race­
conscious measures at issue. The only way to further 
narrowly tailor these programs would be by conducting an 
individualized inquiry into the discrimination suffered by 
every applicant, which is something that strict scrutiny does 
not require. C f Wygant, 476 U.S. at 287 (O’Connor, J., 
concurring) (noting that “a plan need not be limited to the 
remedying of specific instances of identified discrimination 
for it  to be deemed sufficiently ‘narrowly tailored’”).

prepared long before the Court of Appeals issued its written decision. 
Compare Adarand III, 228 F.3d 1147 (Sept. 25, 2000) with 63 Fed. Reg. 
35713 (June 30,1998) and 64 Fed. Reg. 52806 (Sept. 30,1999).



26

X. PETITIONER HAS NOT CHALLENGED THE 
GENDER-BASED CLASSIFICATION IN THE 
STATUTES OR REGULATIONS WHICH, IN  
ANY EVENT, SATISFY BOTH STRICT AND 
INTERMEDIATE SCRUTINY.
The gender-conscious provisions in the DBE 

program are based on a statutory provision that was 
originally enacted in 1988, re-enacted in 1991, and most 
recently re-enacted in 1998.8 In contrast, Petitioner has 
challenged select portions of the Small Business Act and 
related regulations which set forth race-conscious measures 
for remedying discriminatory practices within the 
construction industry. See Adarand, 515 U.S. at 206-08. 
Consequently, if this Court finds a constitutional defect in 
any of those statutes or regulations, it should note that “this 
case concerns only classifications based explicitly on race.” 
Adarand I, 515 U.S. a t 213. Petitioner has repeated this 
position throughout this litigation: on summary judgment 
proceedings before the District Court and on appeal before 
the Tenth Circuit. See Lodging at 6-7, 9-10. Indeed, in its 
amended complaint, Petitioner specifically alleges that it 
“cannot be certified as a DBE because of the race and 
nationality of its operator” and, therefore, asks for an order 
“permanently enjoining Defendants from discriminating in 
the future on the basis of race or national origin in the 
administration of federal highway contracts in the State of 
Colorado.” Id. at 2-4.

As a result, no party presented any evidence or 
argument on the issue of gender-based classifications to the 
District Court or the Tenth Circuit. In fact, the Court of 
Appeals found that Petitioner “has not shown standing to 
challenge “the provisions of the SCC program  pertaining to 
women-owned business enterprises (WBE).’” Adarand III, 
228 F.3d at 1159 (referring to its earlier opinion employing

See Surface Transp. and Uniform Relocation Assistance Act of 
1987, Pub. L. No. 100-17, 101 Stat. 132 (“STURAA”); Intermodal Surface 
Transp. Efficiency Act of 1991, Pub. L. No. 102-240, 105 Stat. 1914 
(“ISTEA”); see also TEA-21, Pub. L. 105-178,112 Stat. 107 (1998).



27

intermediate scrutiny) (citation omitted). Petitioner has 
never challenged this finding in this litigation and did not 
even raise the issue in its petition for a w rit of eertiorai. 
Consequently, the Women Amici respectfully request that 
the Court limit its ruling to only the race-based measures 
which have been challenged in this lawsuit and decline any 
invitation to review the gender-conscious remedies of the 
DBE program.

“The standard for determining the severability of an 
unconstitutional provision is well established: “‘Unless it is 
evident that the Legislature would not have enacted those 
provisions which are within its power, independently of that 
which is not, the invalid part may be dropped if what is left 
behind is fully operative as a law.’”” See Alaska Airlines, 
Inc. v. Brock, 480 U.S. 678, 684 (1987) (quoting Buckley v. 
Valeo, 424 U.S. 1, 108-09 (1976)); Champlin Ref. Co. v. 
Corporation Comm’n  o f Oklahoma, 286 U.S. 210, 234-35 
(1932); accord Brockett v. Spokane Arcades, Inc., 472 U.S. 
491,506 n.15 (1985) (same) (citing same).

The legislative history of the DBE program 
demonstrates that Congress conducted an independent 
analysis of gender and race discrimination within the 
transportation-related (including airport, highway, and 
transit) construction industry. For example, although the 
DBE program was first enacted in 1982, women were not 
added to the program until 1987. See, e.g., H.R. Rep. No. 
100-736, at 21-22; 134 Cong. Rec. 27816-21 (Oct. 3, 1988). 
Furthermore, in order to properly evaluate the disparity of 
opportunities for DBE contractors, the government 
separately tracks minority and women transportation- 
related contract awards. See, e.g., TEA-21, Pub. L. 105-178, 
§ 1101(b)(6), 112 Stat. 107, 114 (1998); 49 C.F.R. § 26.45. In 
fact, Congress considered different studies and evidence 
when evaluating the level of gender discrimination within 
the transportation industry. Compare 61 Fed. Reg. at 
26051-52 n.12 with New Economic Realities, 100th Cong., at 
3-158. Thus, it is clear th a t Congress was acting



28

independently when it  enacted the gender-conscious 
measures of the DBE program.

However, should this Court decide to review these 
gender-based classifications, it should employ intermediate 
scrutiny. See, e.g., Nguyen, 121 S. Ct. a t 2059 (citing VMI, 
518 U.S. a t 533). Under this test, the government must 
have an “exceedingly persuasive” justification for its 
gender-based classification. VMI, 518 U.S. a t 533. In other 
words, the classification must “at least serveQ important 
governmental objectives” in a manner which is
“substantially related to the achievement of those 
objectives.” Nguyen, 121 S. Ct. a t 2059 (citation and 
internal quotation marks omitted). By definition, this 
burden is less demanding than the one applied in challenges 
to race-conscious provisions. See, e.g., VMI, 518 U.S. a t 573- 
74 (Sealia, J., dissenting).

Remedying gender discrimination within the 
transportation industry is an im portant governmental 
objective. See, e.g., Roberts v. United States Jaycees, 468 
U.S. 609, 623-24 (1984) (finding a “compelling interest” of the 
“highest order” in “eradicating discrimination against its 
female citizens” when upholding a state statute that 
prohibited gender discrimination in places of public 
accommodation). In enacting and re-enacting the gender­
conscious provisions of the DBE program, Congress 
analyzed various disparity studies, held numerous hearings 
and debates on the m atter, and consulted with both the 
public and private sectors. See, e.g., New Economic 
Realities, 100th Cong, a t 3-158; H.R. Rep. No. 100-955, a t 9- 
17; 134 Cong. Ree. 27816-21 (Oct. 3,1988); see also Section II 
supra. Most notably, Congress found th a t women-owned 
firms have historically been locked out of government 
contracting opportunities by an existing “good old boy” 
network, have traditionally earned half of the contracting 
dollars their male counterparts receive, and have faced far 
greater difficulty obtaining financing. See H.R. Rep. No. 
100-955, at 9-17; see also Section II supra. Thus, Congress 
and DOT had a sufficient basis in evidence for concluding



29

th a t gender-conscious relief was necessary to remedy the 
ongoing effects of gender discrimination in this area.

In addition, the DBE program’s gender-conscious 
measures are “substantially related to the achievement” of 
th e ir objective. The direct implementation of this assistance 
will remedy the “resulting economic disparity” and provide 
a more competitive playing field for women-owned small 
businesses in the transportation arena. C f Califano v. 
Webster, 430 U.S. 313, 318 (1977); Mississippi Univ. for  
Women v. Hogan, 458 U.S. 718, 728 (1982). Thus, Congress’ 
dissimilar treatm ent of women in the DBE program was not 
an ‘“accidental byproduct of a traditional way of thinking 
about [women],’ but ra ther was deliberately enacted to 
compensate for particular economic disabilities suffered by 
women.” See Webster, 430 U.S. a t 320 (quoting Califano v. 
Goldfarb, 430 U.S. 199,223 (1977) (Stevens, J., concurring)).

Moreover, when enacting these provisions, Congress 
first considered gender-neutral alternatives. Specifically, 
Congress was aware th a t women-owned businesses—like 
minority firms—were still receiving a disproportionately 
small share of government contract awards despite prior 
anti-discrimination legislation and numerous programs 
available to all small businesses under the Small Business 
Act. See, e.g., H.R. Rep. No. 100-736 a t 9, 16-22, 31, 59-61 
(noting that while women-owned firms comprised nearly 
one-third of all small businesses during the 1980s, they 
typically received less than 1 percent of all federal 
contracting dollars); see also 15 U.S.C. § 631(h) (making 
general findings of gender discrimination against women- 
owned firms). I t was for these reasons that Congress 
established aspirational contracting goals for these firms 
and, ultimately, determined that women-owned business— 
like minority firms—should be presumed disadvantaged for 
the  purposes of the DBE program. See, e.g., 134 Cong. Rec. 
27816-21; H.R. Rep. No. 100-736, a t 21-22.

More importantly, when Congress most recently 
considered the issue, it knew that the market itself does not 
operate in a gender-neutral fashion and, thus, that there was



30

a continuing need for the DBE program See Section IV 
supra. In addition, the States are currently required to first 
implement measures which have race- and gender-neutral 
effects before resorting to gender-conscious relief. See 
Section VI supra. Finally, the goals which are set for 
achieving these measures are purely “aspirational.” See 
Section V III supra. While the States are required to make 
“good faith” efforts to achieve these goals, there is no 
penalty for failing to achieve a particular result. Id. Also, 
the gender-conscious provisions of the DBE program are 
subject to all of the same limitations and qualifications as the 
program’s race-conscious provisions, which guarantee th a t 
the these remedial measures are employed only in those 
regions where there is demonstrable evidence of gender 
discrimination and, then, no longer than necessary to 
remedy this problem. See Section IX supra.

CONCLUSION
For reasons explained above, the Women Amici 

respectfully urge this Court to hold that the statutes and 
regulations underlying the SDB and DBE programs are 
constitutional. If the Court determines that one or more 
race-conscious provisions of these programs are invalid, the 
Women Amici respectfully request that the Court limit  its 
holding expressly to those provisions.

Respectfully submitted,

E dward W. Co rreia* 
Christopher  J. Stew art 
Latham & Watkins 
555 Eleventh Street, N.W. 
Suite 1000
Washington, D.C. 20004 
(202) 637-2200

*Counsel of Record



APPENDIX



la

A PPEN D IX

LISTING OF WOMEN AMICI

Women F irst National Legislative Committee 
3000 South Randolph Street, Suite 226 
Arlington, Virginia 22206 

Joanne Payne

Illinois Association of Women Contractors and
Entrepreneurs
P.O. Box 357
Pontiac, IL 61764

Patrida Reiman

Federation of Women Contractors 
330 South Wells Street, Suite 110 
Chicago, IL 60606 

Janice Weber

National Women’s Law Center 
11 Dupont Circle, Suite 800 
Washington, DC 20036

Marcia D. Greenberger 
Nancy D uff Campbell 
Deborah Chalfie

National Partnership for Women & Families 
1875 Connecticut Avenue, NW, Suite 710 
Washington, DC 20009

Judith  L. Lichtman  
Jocelyn C. Frye