DBE Goals Case Analysis

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In light of this decision, Wisconsin’s own DBE program is effectively immune from constitutional attack.

Most importantly, the court reaffirmed its holding in Milwaukee County Pavers Ass’n. v. Fiedler, 922 F.2d 419 (7th Cir. 1991), that a state’s compliance with federal law is sufficient to meet its burden of showing that its DBE program is narrowly tailored. Thus, even if a plaintiff could prove the absence of discrimination in Wisconsin’s transportation contracting industry, the finding would be irrelevant.

The DBE plan would still pass constitutional muster, insofar as it serves a compelling interest, and is narrowly tailored to serve that interest.

Of course, the Eighth Circuit and the Ninth Circuit have both held to the contrary regarding whether the program would be “narrowly tailored,” so there is a split of authority within the circuits. Thus, the Supreme Court would have a valid reason to accept review in this case, if it were sought, and possibly reverse. It denied review of both the Eighth and Ninth Circuit cases, but there was no split of authority at the relevant times.

Furthermore, if the Illinois plan does not exceed the state’s authority under federal law, and passes constitutional muster, Wisconsin’s must also, inasmuch as Wisconsin does not even employ some of the methodology that the plaintiff in the case at bar contended was objectionable.

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For example, Wisconsin essentially does use “bidders lists” only to determine its goals, without resort to census data adjustment under 49 C.F.R. 26.45(d), as Illinois does.

In addition, unlike Illinois, Wisconsin does calculate the percentage of contracts that DBEs are awarded as the low-bidder, rather than through race-conscious goals.

Finally, Wisconsin does all the other things Illinois does to maximize the portion of the goal that can be met by race-neutral means: training, informational sessions, etc. See WisDOT’s Annual DBE Goals — FFY 2007, Aug. 1, 2006, at www.dot.wisconsin.gov/business/ engrserv/dbe-plans.htm.

Accordingly, unless the Supreme Court grants review in this or a similar case, and holds to the contrary, any challenge to Wisconsin’s DBE program is effectively dead on arrival at the courthouse door.

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David Ziemer can be reached by email.