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On March 24, 2015, a United States District Court Judge in the Northern District of Illinois granted complete summary judgment for the federal government, the Illinois Department of Transportation (“IDOT”), and the Illinois State Toll Highway Authority (“Tollway”) in Midwest Fence Corporation v. The United States Department of Transportation, et al. No 10 CV 5627. PJJ represented the Tollway in the litigation. The case presented one in a long line of unsuccessful 14th Amendment equal-protection challenges to the federal DBE program, the second challenge to IDOT’s implementation of the federal program following an unsuccessful challenge in 2007, and the first challenge to the Tollway’s program, which is modeled after, but not governed by, the federal program. All of the defendants’ DBE Programs employ race-conscious remedial measures, commonly referred to as “affirmative action”, such as the setting of minority and women-owned business participation goals on contracts.
The plaintiff Midwest Fence Corporation, which is a white and male-owned contractor that regularly bids on IDOT and Tollway subcontracts, filed the lawsuit in 2010, claiming that the use of such affirmative action reversely discriminated against non-DBE subcontractors like itself. The Court concluded, however, that the defendants’ use of affirmative action to remedy past and present discrimination in the construction industry was constitutional. The court found substantial evidence that minority-owned business were underutilized on IDOT and Tollway contracts compared to their availability and that discriminatory barriers in the construction industry in Illinois impeded the formation of minority-owned businesses at the outset. The Court also concluded that non-DBE subcontractors like Midwest Fence were not unduly burdened by the defendants’ DBE programs. Midwest Fence’s challenge to the DBE programs was the first to contend that the programs were unconstitutional primarily because, in Midwest Fence’s view, they burden predominantly majority-owned subcontractors that are small and specialized in trades where DBEs tend to operate. The Court disagreed, reaffirming long-standing precedent that some “sharing of the burden” of affirmative action programs among majority-owned businesses is constitutionally permissible.
To read the full opinion, click here.