Certifications

Select Certification DBE MBE WBE SBE DVBE HUB Section 3 ELBE SLBE

State

Select a State Alabama Alaska Arizona Arkansas California Colorado Connecticut Delaware District Of Columbia Florida Georgia Hawaii Idaho Illinois Indiana Iowa Kansas Kentucky Louisiana Maine Maryland Massachusetts Michigan Minnesota Mississippi Missouri Montana Nebraska Nevada New Hampshire New Jersey New Mexico New York North Carolina North Dakota Ohio Oklahoma Oregon Pennsylvania Rhode Island South Carolina South Dakota Tennessee Texas Utah Vermont Virginia Washington West Virginia Wisconsin Wyoming

Seventh Circuit rules in favor of DBE program

A federal court ruled on the legality of the federal disadvantaged business enterprise (DBE) program last week.

In its decision, the U.S. Court of Appeals for the Seventh Circuit found that the DBE program is narrowly tailored to serve a compelling government interest in "remedying a history of discrimination in highway construction contracting."

The Seventh Circuit court joins the Eighth, Ninth, and Tenth Circuit courts in so ruling.

The suit against the U.S. Department of Transportation (DOT), as well as against two DBE programs in Illinois, established under the federal DBE program, had been brought by Midwest Fence. They argued that a disproportionate burden was faced by many non-DBE businesses in projects with a DBE subcontracting goal attached, thereby violating their Fourteenth Amendment right to equal protection.

Judge David Hamilton, writing for the Seventh Circuit, rejected this argument as being theoretical in nature, saying that Midwest Fence had presented no factual evidence or independent analysis showing that businesses like Midwest Fence were being shut out of the market.

Judge Hamilton stated the court found the DBE program to be facially constitutional, given that individual states are given "ample discretion" to tailor their respective DBE programs to their own markets in the service of remedying demonstrated underutilization - past and present - of DBEs.

The Seventh Circuit also found it relevant to the constitutionality of the program that quotas are prohibited and that states are forbidden from automatically rejecting contractor's bids simply for failing to meet DBE goals. The court also found it relevant, in deciding that it had not been shown that non-DBEs were being shut out of the market, that not all US DOT funds disbursed in Illinois come with DBE goals attached, and that waivers are available for certain projects with DBE goals.

Representatives of groups that advocate for DBEs, such as Beth Doria for the Federation of Women Contractors and Wendell Stemley for the National Association of Minority Contractors, greeted the ruling favorably, pointing out the benefits to diversity in the workplace and to job growth more generally across the nation that the DBE program has engendered.