Mountain West Holding Co. v. Montana

Since before the Declaration of Independence, equality under the law has long been a central feature of American identity—and was encapsulated in the Constitution. 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 set race‐​based quotas for its construction contracts and 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 Montana has done. Montana’s Disadvantaged Business Enterprise (“DBE”) program implements a federal program aimed at remedying 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, in its recent changes to the program, Montana blew through strict constitutional requirements and based its broad use of racial preferences on a single study that involved weak anecdotal evidence—a study that recommended more race‐​neutral alternatives, not fewer. Even worse, Montana’s federal district court upheld the new provisions. Although Montana did not show which race‐​neutral alternatives were considered, tried, or rejected as insufficiently addressing past discriminatory practices, the court upheld the DBE’s grant of benefits to groups that were not shown to have ever been discriminated against. The contracting company that brought the suit has appealed the case to the U.S. Court of Appeals for the Ninth Circuit. Cato has joined the Pacific Legal Foundation and Center for Equal Opportunity in filing a brief supporting that appeal. We argue that Montana doesn’t meet the high standard of narrow tailoring in its approach to the DBE program because it (1) failed to establish that race‐​neutral measures were insufficient, (2) failed to seriously consider race‐​neutral alternatives, and (3) extended benefits to groups who never even suffered past discrimination. We point out that Montana also failed to adequately establish the very existence of the discrimination that its program purportedly intends to remedy. By cutting corners and paying lip service to race‐​neutral solutions, Montana and the lower court have each done a disservice to the hard‐​won principle of equality under the law. We urge the Ninth Circuit to correct those mistakes.