Assoc. Gen. Contractors v. Cal. Dep’t of Transp.

An affirmative action program which gives bidding preference in construction to specifically identified minorities based on a strong evidentiary showing of discrimination is constitutional under the Equal Protection Clause so long as it is narrowly tailored to benefit the limited groups identified to have actually suffered pervasive and ongoing discrimination.

In June 2009, Associated General Contractors of America, San Diego Chapter (“AGC”) filed a complaint alleging the California Department of Transportation (“Caltrans”) implemented an unconstitutional affirmative action program by giving preference for transportation contracts to firms owned by African-Americans, Native-Americans, Asian Pacific Americans and women. The district court granted summary judgment in favor of Caltrans and held the program was constitutional. The Ninth Circuit found that Caltrans’ implementation of the program and use of race and gender conscious means was authorized under the Safe, Accountable, Flexible, Efficient Transportation Equity Act. Caltrans established through commissioned reports considerable statistical and anecdotal evidence that identified significant disparity in the utilization of the minority groups in the California transportation contracting industry to justify the remedial measures. The analysis accounted for the relative capacity of disadvantaged businesses to perform the work and controlled for existing affirmative action programs. The panel viewed the program under strict scrutiny and found this evidence was enough for Caltrans to infer the identified groups were systematically and pervasively discriminated against in publicly funded contracts. Furthermore, the program was narrowly tailored because it only benefited the groups identified to suffer discrimination in the disparity studies. Additionally, the panel held that because AGC failed to identify any members affected by the program, but merely relied on a declaration of one of its own officers that members would be harmed, AGC failed to establish standing and for lack of jurisdiction. DISMISSED.