Midwest Fence Corp. v. U.S. Dept. of Transportation

June 2, 2015 • Legal Briefs
By Meriem Hubbard, Ralph Kasarda, Ilya Shapiro, & Trevor Burrus

Since before the Declaration of Independence, equality under the law has been a central feature of American identity. The Fourteenth Amendment expanded that constitutional precept to actions by states, not just the federal government. For example, if a state government wants to use race as a factor in pursuing a certain policy, it must do so in the furtherance of a compelling reason—like preventing prison riots—and it must do so in as narrowly tailored a way as possible. This means, among other things, that race‐​neutral solutions must be considered and used as much as possible. So if a state were to, say, set race‐​based quotas for who receives its construction contracts and then claim that no race‐​neutral alternatives will suffice—without showing why—that would fall far short of the high bar our laws set for race‐​conscious government action. Yet that is precisely what Illinois has done. Illinois’s Department of Transportation and the Illinois State Toll Highway Authority have implemented the U.S. Department of Transportation’s Disadvantaged Business Entity (“DBE”) program, which aims to remedy past discrimination against minority and women contractors by granting competitive benefits to those groups. While there may be a valid government interest in remedying past discrimination, Illinois’s implementation of the program blows through strict constitutional requirements and bases its broad use of racial preferences on studies that either employ highly dubious methodology or are so patently outdated that they provide no legal basis on which to conclude, as constitutionally required, that there remains ongoing, systemic, widespread racial (or gender) discrimination in the public‐​construction‐​contracting industry that only the DBE program can rectify. Even the studies Illinois used recommended that the state seek to achieve its anti‐​discrimination goals to the fullest extent possible by race‐​neutral means. Naturally, Illinois ignored this advice and implemented what could only generously be called a half‐​hearted pretense of employing race‐​neutral measures. Even worse, a federal district court upheld Illinois’s implementation. Even though the state failed to show which race‐​neutral alternatives it considered, tried, or rejected, the court held that the DBE’s grant of benefits still passed strict scrutiny. The contracting company that brought the suit has now appealed the case to the U.S. Court of Appeals for the Seventh Circuit. Cato has joined the Pacific Legal Foundation and Center for Equal Opportunity in filing a brief supporting that appeal. We argue that Illinois didn’t meet the high constitutional standards governing the use of race‐​conscious measures in its approach to the DBE program because it (1) failed to establish a strong basis in evidence that there even is ongoing, widespread, systemic racial discrimination that must be remedied, and (2) failed to establish the narrow‐​tailoring requirement that workable race‐​neutral measures be tried and found insufficient before the state can turn to using race. By cutting corners with shoddy studies and paying lip service to race‐​neutral solutions, Illinois and the lower court have each done a disservice to the hard‐​won principle of equality under the law. We urge the Seventh Circuit to correct those mistakes when it takes up Midwest Fence Corp. v. USDOT this summer.

About the Authors
Meriem Hubbard
Ralph Kasarda
Ilya Shapiro

Ilya Shapiro is the director of the Robert A. Levy Center for Constitutional Studies at the Cato Institute and publisher of the Cato Supreme Court Review.

Trevor Burrus

Research Fellow, Robert A. Levy Center for Constitutional Studies