United States 9th Circuit Court of Appeals Reports

WESTERN STATES PAVING v. WASHINGTON STATE, 407 F.3d 983 (9th Cir. 2005) WESTERN STATES PAVING CO., INC., Plaintiff-Appellant, v. WASHINGTON STATE DEPARTMENT OF TRANSPORTATION; City of Vancouver, Washington; Clark County, Washington; Douglas MacDonald, Defendants-Appellees, United States of America; U.S. Department of Transportation; Federal Highway Administration, Defendants-Intervenors-Appellees. No. 03-35783. United States Court of Appeals, Ninth Circuit. Argued and Submitted February 11, 2005. Filed May 9, 2005. Page 984


>>pp. 3-4 of 9th opinion>> “In July 2000, Western States submitted a bid for subcontracting work on the City of Vancouver’s “NE Burton Road Project.” The project was financed by federal transportation funds provided to the Washington State Department of Transportation (“WSDOT”) under the Transportation Equity Act for the 21st Century (“TEA-21”). In order to comply with TEA-21’s minority utilization requirements, the State mandated that the city obtain 14% minority participation on the project. [The Court noted that TEA-21’s use of the word “minority” includes selected racial minorites as well as women of any race.] The prime contractor was bound by this requirement and rejected Western States’ bid in favor of a higher bid from a minority-owned firm.”

>>p. 4 of 9th circuit opinion>> “In August 2000, Western States submitted a subcontracting bid on Clark County’s “Padden Parkway (East Leg)” project, which was substantially financed with TEA-21 funds. In distributing these funds to Clark County, the WSDOT imposed a 14% minority utilization requirement. The prime contractor did not select Western States, even though its bid was $100,000 less than that of the minority-owned firm that was selected. The prime contractor explicitly identified the contract’s minority utilization requirement as the reason that it rejected Western States’ bid.

“Western States filed suit against the WSDOT, Clark County, and the City of Vancouver in the United States District Court for the Western District of Washington. Western States sought a declaratory judgment holding TEA-21’s minority preference program to be a violation of equal protection under the Fifth and Fourteenth Amendments of the U.S. Constitution, either on its face or as applied by the State of Washington. Western States also requested damages under 42 U.S.C. Sections 1981, 1983, and 2000(d) and relief under Washington State law. The United States, the U.S. Department of Transportation (“USDOT”), and the Federal Highway Administration intervened to defend TEA-21’s facial constitutionality. Although the federal government [intervenors] took no position regarding Western States’ as-applied challenge, it acknowledged that the “state would have to have evidence of past or current effects of discrimination to use race-conscious goals.” Dist. Ct. Oral Argument Tr. 48.


The state highway administrations, including Washington State, receive funding from the Federal Highway Administration (FHWA), a division of U.S. DOT. FHWA requires that the state transportation administrations accepting federal funds (which is all states) must award a minimum of 10% of their contracts to minority owned firms. FHWA describes this as “an aspirational goal”, which means the FHWA denies liability for implementing racial quotas. FHWA also claims it does not penalize the various state DOT’s for awarding a percentage of contracts above or below this 10% “aspirational goal” if the state has shown a good faith effort to meet the 10% “aspirational goal”.

Through this shallow use of semantics and “non-strict quotas” (i.e., aspirational goals) FHWA has succeeded for many years in avoiding legal challenges to its discriminatory use of racial preferences (quotas). As a key component of FHWA’s strategy (indeed, most federal agencies are engaged in this same shell game) FHWA has insisted on what they think is a more legally defensible strategy of requiring that the states themselves conduct “disparity studies” to independently determine “local underutilization” of selected minorities in their contract awards.

First and foremost, and notwithstanding the fatal flaws and lack of statistical validity, much less proof of causality, of virtually all such disparity studies, FHWA and other federal agencies have believed this one- or two-degree removal from the race-based decision process at the state level will protect them from legal action and make it more difficult for opponents of racial preferences to mount effective legal challenges against such a diffuse, multi-state set of race-based contract award criteria. After all, it is more difficult to sue each of the 50 state departments’ of transportation than it is to sue a single federal government agency. Unfortunately, this shallow shell game has usually worked … at least until now.

Secondly, FHWA and all federal funding agencies which return money to the states in this way devote a great deal of lip service to “exhausting all possible race-neutral means” of ensuring that a deliberately vaguely defined correct number (or range of acceptable numbers) of preferred minorities receive their share of the state-federal contracts.

Government actors, such as FHWA and Washington DOT, have up until now failed in any meaningful way to implement the Adarand imperative that they exhaust every possible race neutral means of achieving “minority representation” in the ranks of contractors before using the last resort of intrusive, divisive, and limited duration racial preferences and setasides. Their race neutral methods have fallen far short of the “strictly scrutinized, narrowly tailored, compelling government interest” standards which were definitively codified in a series of lawsuits culminating in the historic 1995 Adarand Constructors decision. Supreme Court of the United States No. 93-1841 June 12, 1995: “Adarand Constructors, Inc. v. Federico Pena, Secretary of Transportation, et al”.