The State of Minority- and Women- Owned ... - Cleveland.com

Legal Standards for Government Affirmative Action Contracting Programs
B. Strict Scrutiny as Applied to Federal Enactments
In Adarand v. Peña, 32 the Court again overruled long settled law and extended the analysis of
strict scrutiny under the Due Process Clause of the Fourteenth Amendment to federal
enactments. Just as in the local government context, when evaluating federal legislation and
regulations:
[t]he strict scrutiny test involves two questions. The first is whether the interest cited by
the government as its reason for injecting the consideration of race into the application of
law is sufficiently compelling to overcome the suspicion that racial characteristics ought
to be irrelevant so far as treatment by the government is concerned. The second is
whether the government has narrowly tailored its use of race, so that race-based
classifications are applied only to the extent absolutely required to reach the proffered
interest. The strict scrutiny test is thus a recognition that while classifications based on
race may be appropriate in certain limited legislative endeavors, such enactments must be
carefully justified and meticulously applied so that race is determinative of the outcome
in only the very narrow circumstances to which it is truly relevant. 33
1. U.S. Department of Transportation’s Disadvantaged Business Enterprise
Program
To comply with Adarand, Congress reviewed and revised the Disadvantaged Business Enterprise
(DBE) Program statute 34 and implementing regulations 35 for federal-aid contracts in the
transportation industry. To date, every court that has considered the issue has found the
regulations to be constitutional on their face. 36 While not directly controlling for Cleveland’s
consideration of race- and gender-conscious measures for its locally-funded contracts, they are
highly instructive about the legal parameters likely to be applied to a local M/WBE program.
While binding strictly only upon the DBE Program, these cases provide important guidance to
the City about the types of evidence necessary to establish its compelling interest in adopting a
local a program and how to narrowly tailor it, and the City would be wise to meet these
standards. For example, the Fourth Circuit noted with approval that North Carolina’s M/WBE
program for state-funded contracts largely mirrored Part 26. 37
32 515 U.S. 200 (1995) (Adarand III).
33 Adarand Constructors, Inc. v. Peña, 965 F. Supp. 1556, 1569-1570 (D. Colo. 1997), rev’d, 228 F.3d 1147 (2000)
(“Adarand IV”); see also Adarand III, 515 U.S. at 227.
34 Transportation Equity Act for the 21 st Century (TEA-21), Pub. L. No. 105-178 (b)(1), 112 Stat. 107, 113.
35 49 C.F.R. Part 26.
36 See, e.g., Adarand Constructors, Inc. v. Slater, 228 F.3d 1147 (10 th Cir. 2000) (“Adarand VII”), cert. granted
then dismissed as improvidently granted, 532 U.S. 941, 534 U.S. 103 (2001); Northern Contracting, Inc. v.
Illinois Department of Transportation, 2004 U.S. Dist. LEXIS 3226 at *64 (N.D. Ill., Mar. 3, 2004) (“Northern
Contracting I”).
37 H.B. Rowe Co. v. Tippett, 615 F.3d 233, 236 (4 th Cir. 2010).
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