Associated General Contractors v. California Department of Transportation ( 2013 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ASSOCIATED GENERAL No. 11-16228
CONTRACTORS OF AMERICA , SAN
DIEGO CHAPTER, INC., a non profit D.C. No.
California corporation, 2:09-cv-01622-
Plaintiff-Appellant, JAM-GGH
v.
OPINION
CALIFORNIA DEPARTMENT OF
TRANSPORTATION ; WILL KEMPTON ,
individually and in his official
capacity as Director of the California
Department of Transportation;
OLIVIA FONSECA ,
Defendants-Appellees,
COALITION FOR ECONOMIC EQUITY ;
NATIONAL ASSOCIATION FOR THE
ADVANCEMENT OF COLORED
PEOPLE , San Diego Chapter,
Intervenor-Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
John A. Mendez, District Judge, Presiding
Argued and Submitted
February 11, 2013—San Francisco, California
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Filed April 16, 2013
Before: Jerome Farris, Sidney R. Thomas,
and N. Randy Smith, Circuit Judges.
Opinion by Judge Farris
SUMMARY*
Civil Rights
The panel dismissed an appeal from the district court’s
summary judgment in a 42 U.S.C. § 1983 action in which
plaintiffs, Associated General Contractors of America, sought
declaratory and injunctive relief against the California
Department of Transportation (Caltrans) and its officers, on
the grounds that Caltrans’ 2009 Disadvantaged Business
Enterprise program unconstitutionally provided race- and sex-
based preferences to African American-, Native American-,
Asian-Pacific American-, and women-owned firms on certain
transportation contracts.
The panel held that AGC did not identify any of its
members who have suffered or will suffer harm as a result of
Caltrans’ affirmative action program, and therefore AGC had
not established that it has associational standing to bring suit.
The panel further held that even if AGC could establish
standing, its appeal would fail. The panel held that Caltrans’
program survived strict scrutiny by (1) having a strong basis
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
A SSOC . G EN . C ONTRACTORS V . C AL . D EP ’ T OF T RANSP . 3
in evidence of discrimination within the California
transportation contracting industry; and (2) being narrowly
tailored to benefit only those groups that have actually
suffered discrimination.
COUNSEL
Ralph W. Kasarda, Pacific Legal Foundation, Sacramento,
California, for Plaintiff-Appellant.
G. Scott Emblidge, Moscone Emblidge & Sater LLP, San
Francisco, California, for Defendant-Appellee; Oren M.
Sellstrom, San Francisco, California, for Intervenors-
Defendants-Appellees.
Angela C. Thompson, Sacramento, California, for Amicus
Curiae United States Justice Foundation.
Sharon M. McGowan, United States Department of Justice,
Civil Rights Division, Washington, D.C., for Amicus Curiae
United States of America.
OPINION
FARRIS, Senior Circuit Judge:
Associated General Contractors of America, San Diego
Chapter, appeals from the district court’s adverse summary
judgment rulings. AGC sought declaratory and injunctive
relief against the California Department of Transportation and
its officers, on the grounds that Caltrans’ 2009 Disadvantaged
Business Enterprise program unconstitutionally provided
4 A SSOC . G EN . C ONTRACTORS V . C AL . D EP ’ T OF T RANSP .
race- and sex-based preferences to African American-, Native
American-, Asian-Pacific American-, and women-owned
firms on certain transportation contracts. The Coalition for
Economic Equity and the National Association for the
Advancement of Colored People, San Diego Chapter,
intervened to defend the program.
On summary judgment, the district court upheld the
constitutionality of Caltrans’ program and entered judgment
for the defendants. Following Western States Paving Co. v.
Washington Sate Department of Transportation, 407 F.3d
983 (9th Cir. 2005), the district court held that Caltrans’
program would satisfy strict scrutiny if it had a strong basis
in evidence of discrimination in the California transportation
contracting industry, and the program was narrowly tailored
to those groups that actually suffered discrimination. The
court held that Caltrans’ substantial statistical and anecdotal
evidence provided a strong basis in evidence of
discrimination against the four named groups, and that the
program was narrowly tailored to benefit only those groups.
AGC appealed. We DISMISS the appeal because AGC did
not identify any of its members who have suffered or will
suffer harm as a result of Caltrans’ program, and therefore
AGC has not established that it has associational standing to
bring suit.1
1
Caltrans’ request for judicial notice is GRANTED to the extent that it
is compatible with F ED . R. E VID . 201 and “do[es] not require the
acceptance of facts subject to reasonable dispute.” California ex rel.
RoNo, LLC v. Altus Fin. S.A., 344 F.3d 920, 931 n.8 (9th Cir. 2003)
(internal quotation marks omitted). The motion of the United States
Justice Foundation for leave to file a brief as amicus curiae is
GRANTED.
A SSOC . G EN . C ONTRACTORS V . C AL . D EP ’ T OF T RANSP . 5
I. BACKGROUND AND STATEMENT OF FACTS
A. Statutory and Regulatory Background
The Safe, Accountable, Flexible, Efficient Transportation
Equity Act: A Legacy for Users, Pub. L. No. 109-59,
§ 1101(b), 119 Stat. 1144 (2005), authorizes the U.S.
Department of Transportation to distribute funds to states for
transportation-related projects. The Act is the most recent
federal statute providing for race- and gender-based
preferences in the transportation contracting industry in
response to pervasive and ongoing discrimination. See
Western States, 407 F.3d at 988 & n.3. The Act directs the
Secretary of Transportation to ensure that 10% of funds
distributed to states and municipalities are expended on
“disadvantaged business enterprises.” § 1101(b)(2), 119 Stat.
at 1156.
The Act does not establish a uniform national affirmative
action program. Each state that receives federal funds must
implement a preference program that complies with federal
regulations. See 49 C.F.R. § 26.1 et. seq. The regulations
define “disadvantaged business enterprises” as small
businesses owned or controlled by “socially and
economically disadvantaged” individuals. Id. § 26.5. There is
a reubuttable presumption that African Americans, Hispanic
Americans, Native Americans, Asian-Pacific Americans,
Subcontinent Asian Americans, and women are socially and
economically disadvantaged. Id. § 26.67.
States that receive federal funding must establish overall
goals for disadvantaged business participation in federally
assisted contracts. Id. § 26.45(a). In the process of setting a
goal, the state must first determine the availability of
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disadvantaged businesses in its jurisdiction. Id. § 26.45(c).
Then, the state may make an upward or downward adjustment
to account for factors affecting the availability of
disadvantaged businesses. Id. § 26.45(d). After comparing
availability data with the actual utilization of disadvantaged
businesses, the state sets an overall goal to address significant
disparities. Id. § 26.45(e).
States must use race- and gender-neutral means to meet
their goals to the maximum extent possible, but may use race-
and gender-conscious means if necessary. Id. § 26.51(a)–(d).
Generally, race- and gender-conscious means may not be
targeted at specific groups. Id. § 26.51(e)(4). However, a state
may use race-conscious means directed at specific minority
groups, if it obtains a waiver. See id. § 26.15. States must
seek approval of their affirmative action programs by the U.S.
Department of Transportation every three years. Id.
§ 26.45(f)(1)(i).
B. Ninth Circuit Decision in Western States
In 2005, the Ninth Circuit decided Western States Paving
Co. v. Washington State Department of Transportation,
407 F.3d 983 (9th Cir. 2005), which involved a facial
challenge to the constitutional validity of a predecessor law
to the Act, as well as an as-applied challenge to the
Washington program implementing the federal mandate.
Applying strict scrutiny, we upheld the constitutionality of
the federal statute and regulations. Id. at 990–95. However,
we struck down Washington’s program because it was not
narrowly tailored. Id. at 999–1002. In so doing, Western
States announced a two-prong test for narrow tailoring: (1)
the state must establish the presence of discrimination within
its transportation contracting industry, and (2) the remedial
A SSOC . G EN . C ONTRACTORS V . C AL . D EP ’ T OF T RANSP . 7
program must be “limited to those minority groups that have
actually suffered discrimination.” Id. at 997–98.
C. Caltrans’ Implementation of the Act
Caltrans receives up to $3 billion annually from the
federal government for transportation projects. Prior to 2006,
Caltrans administered a race- and gender-conscious
affirmative action program on federally assisted contracts.
However, on May 1, 2006, Caltrans ceased to use race- and
gender-conscious measures while it gathered evidence in an
effort to comply with Western States.
1. Evidence Gathering and the 2007 Disparity
Study
Caltrans commissioned a disparity study by BBC
Research and Consulting to determine whether there was
evidence of discrimination in California’s contracting
industry. Disparity analysis involves making a comparison
between the availability of minority- and women-owned
businesses and their actual utilization, producing a number
called a “disparity index.” An index of 100 represents
statistical parity between availability and utilization, and a
number below 100 indicates underutilization. An index below
80 is considered a substantial disparity that supports an
inference of discrimination. See H.B. Rowe Co. v. Tippett,
615 F.3d 233, 243–44 (4th Cir. 2010).
The research firm gathered extensive data to calculate
disadvantaged business availability in the California
transportation contracting industry. Based on review of public
records, interviews, assessments as to whether a firm could be
considered available for Caltrans contracts, as well as
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numerous other adjustments, the firm concluded that
minority- and women-owned businesses should be expected
to receive 13.5% of contract dollars from Caltrans
administered federally assisted contracts.
The research firm then examined over 10,000
transportation-related contracts administered by Caltrans
between 2002 and 2006 to determine actual DBE utilization.
The firm assessed disparities across a variety of contracts,
separately assessing contracts based on funding source (state
or federal), type of contract (prime or subcontract), and type
of project (engineering or construction). A key difference
between federally funded and state funded contracts is that
race-conscious goals were in place for the federally funded
contracts during the 2002–2006 period, but not for the state
funded contracts. Thus, state funded contracts functioned as
a control group to help determine whether previous
affirmative action programs skewed the data. Moreover, the
research firm measured disparities in all twelve of Caltrans’
administrative districts, and computed aggregate disparities
based on statewide data.
The firm evaluated statistical disparities by race and
gender. To control for gender, the firm grouped women who
were members of racial minorities with male members of the
same minority. As such, its report describes its gender control
group as “white women-owned firms” and measures
disparities for this group, as well as firms owned by African
Americans, Native Americans, Asian-Pacific Americans,
Subcontinent Asian Americans, and Hispanic Americans.
The research firm published its results in June 2007.
Within and across many categories of contracts, it found
substantial statistical disparities for African American, Asian-
A SSOC . G EN . C ONTRACTORS V . C AL . D EP ’ T OF T RANSP . 9
Pacific, and Native American firms. For example, in
aggregated state funded contracts, African Americans
received only 15% of the contract dollars that would be
expected, given their availability, and Asian-Pacific and
Native Americans earned less than one-third and two-thirds,
respectively. However, there were not substantial disparities
for these minorities in every subcategory of contract. For
example, the disparity indices for Native and Asian-Pacific
Americans were above 80 in federally funded construction
subcontracts.
The disparity study also found substantial disparities in
utilization of women-owned firms for some categories of
contracts. For example, the disparity index for white women
on aggregated state funded contracts was 48. After
publication of the disparity report, BBC calculated disparity
indices for all women-owned firms, including female
minorities. The results showed substantial disparities in the
utilization of all women-owned firms similar to those
measured for white women. For some subcategories of
contracts, there was no substantial disparity for white women-
owned firms.
Caltrans and the research firm also gathered extensive
anecdotal evidence by (1) conducting twelve public hearings
to receive comments on the firm’s findings; (2) receiving
letters from business owners and trade associations; and
(3) interviewing representatives from twelve trade
associations and 79 owners/managers of transportation firms.
Some of the anecdotal evidence indicated discrimination
based on race or gender.
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2. Design of Caltrans’ Affirmative Action
Program
Caltrans concluded that the evidence supported an
inference of discrimination in the California transportation
contracting industry. Specifically, Caltrans concluded that it
had sufficient evidence to make race- and gender-conscious
goals for African American-, Asian-Pacific American-,
Native American-, and women-owned firms. Caltrans
adopted the recommendations of the disparity report and set
an overall goal of 13.5% for disadvantaged business
participation. Caltrans expected to meet one-half of the 13.5%
goal using race-neutral measures.
On November 14, 2007, Caltrans submitted its proposed
program to the U.S. Department of Transportation for
approval. The proposal included a request for a waiver to
implement the program only for the four identified groups.
The program included 66 race-neutral measures that Caltrans
already operated or planned to implement. Subsequent
proposals increased the number of race-neutral measures to
150.
On August 7, 2008, the Department of Transportation
granted the waiver, but did not approve Caltrans’ program.
On April 2, 2009, the Department of Transportation approved
Caltrans’ program designed for fiscal year 2009.
D. District Court Proceedings
On June 11, 2009, AGC filed a complaint alleging that
Caltrans’ implementation of the Act violated inter alia the
Fourteenth Amendment of the U.S. Constitution, Title VI of
the Civil Rights Act, and Article I, section 31 of the
A SSOC . G EN . C ONTRACTORS V . C AL . D EP ’ T OF T RANSP . 11
California Constitution. On December 17, 2010, AGC
voluntarily dropped its state constitutional claim, and only
argued an as-applied challenge to Caltrans’ affirmative action
program. On December 23, 2009, the district court granted a
motion filed by the Coalition for Economic Equity and the
NAACP, San Diego Chapter to intervene as defendants.
Following discovery, all parties filed summary judgment
motions. On March 23, 2011, the district court granted
Caltrans’ and Intervenors’ motions and denied AGC’s
motion. The court held that Caltrans’ program was “clearly
constitutional,” as it was supported by a strong basis in
evidence of discrimination in the California contracting
industry and was narrowly tailored to those groups which had
actually suffered discrimination.
E. Subsequent Caltrans Program
While this appeal was pending, Caltrans commissioned a
new disparity study from the research firm to update its
preference program as required by the federal regulations. See
49 C.F.R. § 26.45(f)(1)(i). On August 31, 2012, the research
firm published its second disparity report. Caltrans concluded
that the updated study provided evidence of continuing
discrimination in the California transportation contracting
industry against African Americans, Native Americans,
Asian-Pacific Americans, Hispanic Americans, and women.
Caltrans submitted a modified disadvantaged business
enterprise program that is nearly identical to the program
approved in 2009, except that it now includes Hispanic
Americans and sets an overall goal of 12.5%, of which 9.5%
will be achieved through race- and gender-conscious
measures. On November 29, 2012, the U.S. Department of
Transportation approved Caltrans’ updated program.
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II. JURISDICTION
Before reaching the merits, we must determine whether
we have jurisdiction over AGC’s appeal. See Steel Co. v.
Citizens for a Better Env’t, 523 U.S. 83, 94–95 (1998).
Caltrans argues that jurisdiction is precluded by the doctrines
of mootness and standing.
A. Mootness
In a letter filed shortly before oral argument, Caltrans
contends that many issues raised in AGC’s appeal are moot
because Caltrans has enacted a new affirmative action
program since AGC filed its appeal.
The Supreme Court rejected a similar argument in
Northeastern Florida Chapter of Associated General
Contractors of America v. City of Jacksonville, 508 U.S. 656(1993). In Northeastern Florida, the plaintiff challenged a
Jacksonville ordinance establishing a disadvantaged business
enterprise program granting race-based preferences in public
contracting. Id. at 658–59. Shortly after the Supreme Court
granted certiorari, Jacksonville repealed the ordinance and
replaced it with a substantially similar one. The Court held
that the original case was not moot because “a defendant’s
voluntary cessation of a challenged practice does not deprive
a federal court of its power to determine the legality of the
practice.” Id. at 661–62 (quoting City of Mesquite v.
Aladdin’s Castle, Inc., 455 U.S. 283, 289 (1982)). In
language equally applicable to the instant case, the Court
reasoned that there was not merely a risk that the government
would repeat the challenged conduct, it had already done so
by instituting a substantially similar preference program. Id.
at 662. Similarly, the appeal in the instant case is not moot.
A SSOC . G EN . C ONTRACTORS V . C AL . D EP ’ T OF T RANSP . 13
Caltrans’ new preference program is substantially similar to
the prior program and is alleged to disadvantage AGC’s
members “in the same fundamental way” as the previous
program. See id.
B. Standing
To establish associational standing, AGC must show:
(a) its members would otherwise have
standing to sue in their own right;
(b) the interests it seeks to protect are
germane to the organization’s purpose; and
(c) neither the claim asserted nor the relief
requested requires the participation of
individual members in the lawsuit.
Associated Gen. Contractors of Am. v. Metro. Water Dist. of
S. Cal., 159 F.3d 1178, 1181 (9th Cir. 1998) (citation
omitted); see also Summers v. Earth Island Inst., 555 U.S.
488, 494 (2009). The second and third prongs are not at issue
here. See Metro. Water, 159 F.3d at 1181 (concluding that
AGC’s lawsuit was germane to its purpose and that the
injunctive and declaratory relief sought did not require the
individual participation of members).
To meet the first prong, AGC must show that a member
suffers an injury-in-fact that is traceable to the defendant and
likely to be redressed by a favorable decision. See Braunstein
v. Arizona Dep’t of Transp., 683 F.3d 1177, 1184 (9th Cir.
2012); see also Summers, 555 U.S. at 494; Lujan v. Defenders
of Wildlife, 504 U.S. 555, 573 (1992). AGC’s effort to prove
14 A SSOC . G EN . C ONTRACTORS V . C AL . D EP ’ T OF T RANSP .
the requisite injury to a member requires, first, “specific
allegations establishing that at least one identified member
had suffered or would suffer harm.” Summers, 555 U.S. at
498 (emphasis added). The “requirement of naming the
affected members has never been dispensed with in light of
statistical probabilities.” Id. at 498–99. Moreover, on
summary judgment, AGC was required to submit competent
evidence, not mere allegations, to demonstrate that at least
one of its members had standing. See Lujan, 504 U.S. at 561;
see also Metro. Water, 159 F.3d at 1181 (holding that AGC
established associational standing where AGC’s standing
argument was supported by affidavits from member
companies showing harm).
AGC fails to meet this standard. AGC does not identify
any affected members by name nor has it submitted
declarations by any of its members attesting to harm they
have suffered or will suffer under Caltrans’ program. The
only evidence AGC relies on to satisfy standing is a
declaration from James Ryan, AGC’s Executive Vice
President, and many relevant portions of the declaration were
struck from the record by the district court in an evidentiary
ruling that AGC does not challenge. In any event, the Ryan
declaration does not name any specific members of AGC who
would be harmed by Caltrans’ program.
At oral argument, AGC contended that the general
allegations in its complaint asserting that its members would
suffer harm is sufficient to establish standing under
Northeastern Florida. AGC’s reliance on Northeastern
Florida is misplaced. In Northeastern Florida, standing was
upheld based on uncontested allegations in a verified
complaint that the plaintiff’s members suffered the requisite
harm. See 508 U.S. at 668–69. Because the allegations were
A SSOC . G EN . C ONTRACTORS V . C AL . D EP ’ T OF T RANSP . 15
not challenged, the Court reasoned that it had to accept them
as true. Id. In contrast, Caltrans disputes AGC’s allegations
and undermined any evidentiary support that AGC offered to
substantiate those allegations. Additionally, AGC concedes
that unlike Northeastern Florida, its complaint was not
verified. An unverified complaint cannot form the basis of
evidence considered at summary judgment. Moran v. Selig,
447 F.3d 748, 759–60 (9th Cir. 2006).
Because AGC has failed to establish standing, we must
DISMISS the appeal for lack of jurisdiction. See Summers,
555 U.S. at 492–93.
III.
Further, even if AGC could establish standing, its appeal
would fail. Caltrans’ affirmative action program is
constitutional, so long as it survives the applicable level of
scrutiny required by Equal Protection jurisprudence.
Race-conscious remedial programs must satisfy strict
scrutiny. Western States, 407 F.3d at 990 (citing Adarand
Constructors, Inc. v. Peña, 515 U.S. 200, 227 (1995)
(Adarand III)). Racial classifications survive strict scrutiny if
they are “narrowly tailored measures that further compelling
governmental interests.” Id. “The burden of justifying
different treatment by ethnicity . . . is always on the
government.” Id. Although stringent, strict scrutiny is not
“fatal in fact.” Adarand III, 515 U.S. at 237. “The unhappy
persistence of both the practice and the lingering effects of
racial discrimination against minority groups in this country
is an unfortunate reality, and government is not disqualified
from acting in response to it.” Id.
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Gender-conscious programs must satisfy intermediate
scrutiny. Western States, 407 F.3d at 990 n.6. Intermediate
scrutiny requires that gender-conscious programs be
“supported by an ‘exceedingly persuasive justification’ and
substantially related to the achievement of that underlying
objective.” Id. (quoting United States v. Virginia, 518 U.S.
515, 524 (1996)).
Caltrans’ affirmative action program contains both race-
and gender-conscious measures. The entire program passes
strict scrutiny. It is therefore unnecessary to undertake a
separate analysis under intermediate scrutiny. See id.
A. Application of Strict Scrutiny Standard
Articulated in Western States
The framework for AGC’s as-applied challenge to
Caltrans’ affirmative action program is governed by Western
States, 407 F.3d at 995–1002. Western States held that the
state “need not demonstrate an independent compelling
interest for its [affirmative action] program” because the
state’s program rested upon the compelling nationwide
interest identified by Congress in passing the federal statute.
Id. at 997. The Court then devised a two-prong test for
narrow tailoring: (1) the state must establish the presence of
discrimination within its transportation contracting industry,
and (2) the remedial program must be “limited to those
minority groups that have actually suffered discrimination.”
Id. at 997–99.
A SSOC . G EN . C ONTRACTORS V . C AL . D EP ’ T OF T RANSP . 17
1. Evidence of Discrimination in California
Contracting Industry
In Equal Protection cases, courts consider statistical and
anecdotal evidence to identify the existence of discrimination.
E.g., Western States, 407 F.3d at 991; Adarand Constructors,
Inc. v. Slater, 228 F.3d 1147, 1166 (10th Cir. 2000). The
Supreme Court has suggested that a “significant statistical
disparity” could be sufficient to justify race-conscious
remedial programs. City of Richmond v. J.A. Croson Co.,
488 U.S. 469, 509 (1989). Although generally not sufficient,
anecdotal evidence complements statistical evidence because
of its ability to bring “the cold numbers convincingly to life.”
Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 339
(1977).
Western States concluded that Washington’s affirmative
action program was not supported by sufficient evidence. Id.
at 999–1002. Washington had performed no statistical studies
and offered no anecdotal evidence. Id. at 1000–01. Instead,
Washington merely compared the availability of
disadvantaged businesses to the percentage of contract dollars
awarded to such businesses. Id. at 1000. The Court criticized
Washington’s oversimplified methodology, and gave little
weight to the purported disparity because Washington’s data
did not account for the relative capacity of disadvantaged
businesses to perform work, nor did it control for the fact that
existing affirmative action programs skewed the prior
utilization of minority businesses in the state. Id. The Court
struck down Washington’s program after determining that the
record was “devoid of any evidence suggesting that
minorities currently suffer—or have ever suffered—
discrimination in the Washington transportation contracting
industry.” Id. at 1002.
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In contrast, Caltrans’ affirmative action program is
supported by substantial statistical and anecdotal evidence of
discrimination in the California transportation contracting
industry. The 2007 disparity study documented disparities in
the utilization of African American-, Native American-,
Asian-Pacific American-, and women-owned firms in many
categories of transportation contracts. The study accounted
for the factors mentioned in Western States as well as others,
adjusting availability data based on capacity to perform work
and controlling for previously administered affirmative action
programs. See Western States, 407 F.3d at 1000. Moreover,
the statistical evidence from the disparity study is bolstered
by anecdotal evidence supporting an inference of
discrimination. The substantial statistical disparities alone
would give rise to an inference of discrimination, see Croson,
488 U.S. at 509, and certainly Caltrans’ statistical evidence
combined with anecdotal evidence passes constitutional
muster.
AGC urges that strict scrutiny requires Caltrans to provide
evidence of “specific acts” of “deliberate” discrimination by
Caltrans employees or prime contractors, which Caltrans has
failed to do. AGC derives this purported rule from Croson’s
requirement that race-conscious measures be limited to
address discrimination that the state has identified “with some
specificity.” 488 U.S. at 504.
AGC reads Croson too broadly. Croson explicitly states
that “[t]he degree of specificity required in the findings of
discrimination . . . may vary.” Id. at 489 (quotation marks and
citation omitted). Moreover, a rule requiring the state to show
specific acts of deliberate discrimination by identified
individuals would run contrary to the statement in Croson
that statistical disparities alone could be sufficient to support
A SSOC . G EN . C ONTRACTORS V . C AL . D EP ’ T OF T RANSP . 19
race-conscious remedial programs. Id. at 509. This Court has
previously rejected a similar interpretation of Croson. See
Associated Gen. Contractors of Cal., Inc. v. Coal. for Econ.
Equity, 950 F.2d 1401, 1416 n.11 (9th Cir. 1991) (AGCC II)
(rejecting AGC’s attempt to “seek[ ] to have us engraft the
framework for title VII . . . onto Croson’s equal protection
framework.”). We reject AGC’s argument that Caltrans’
program does not survive strict scrutiny because the disparity
study does not identify individual acts of deliberate
discrimination.
Second, AGC argues that the 2007 disparity study shows
inconsistent results for utilization of minority businesses
depending on the type and nature of the contract, and thus
cannot support an inference of discrimination in the entire
transportation contracting industry. Specifically, AGC asserts
that the statistical results vary depending on whether the
contracts at issue are prime or subcontracts, and within each
of those categories, results differ as between construction and
engineering contracts. AGC appears to contend that each of
these subcategories of contracts must be viewed in isolation
when considering whether an inference of discrimination
arises.
AGC’s argument overlooks the rationale underpinning the
constitutional justification for remedial race-conscious
programs: they are designed to root out “patterns of
discrimination.” Croson, 488 U.S. at 504. The issue is not
whether Caltrans can show underutilization of disadvantaged
businesses in every measured category of contract. Rather,
Caltrans can meet the evidentiary standard required by
Western States if, looking at the evidence in its entirety, the
data show substantial disparities in utilization of minority
firms suggesting that public dollars are being poured into “a
20 A SSOC . G EN . C ONTRACTORS V . C AL . D EP ’ T OF T RANSP .
system of racial exclusion practiced by elements of the local
construction industry.” Id. at 492.
The 2007 disparity study and anecdotal evidence
document a pattern of disparities for African American-,
Native American-, Asian-Pacific American-, and women-
owned firms. The study found substantial underutilization of
these groups in numerous categories of California
transportation contracts, which the anecdotal evidence
confirms. This is sufficient to enable Caltrans to infer that
these groups are systematically discriminated against in
publicly-funded contracts.
Third, AGC contends that the anecdotal evidence has
little or no probative value in identifying discrimination
because it is not verified. AGC cites to no controlling
authority for a verification requirement. Both the Fourth and
Tenth Circuits have rejected the need to verify anecdotal
evidence. Rowe, 615 F.3d at 249; Concrete Works of Colo.,
Inc. v. City & Cnty. of Denver, 321 F.3d 950, 989 (10th Cir.
2003). AGC makes no persuasive argument that we should
hold otherwise.
AGC also discounts the anecdotal evidence because some
accounts ascribe minority underutilization to factors other
than overt discrimination, such as difficulties with obtaining
bonding and breaking into the “good ole boy” network of
contractors. However, federal courts and regulations have
identified precisely these factors as barriers that disadvantage
minority firms because of the lingering effects of
discrimination. See, e.g., Western States, 407 F.3d at 992;
AGCC II, 950 F.2d at 1414; 49 C.F.R. § 26.45(d)(2)(i).
Morever, AGC ignores the many incidents of racial and
gender discrimination presented in the anecdotal evidence.
A SSOC . G EN . C ONTRACTORS V . C AL . D EP ’ T OF T RANSP . 21
Caltrans does not claim, and the anecdotal evidence does not
need to prove, that every minority-owned business is
discriminated against. It is enough that the anecdotal evidence
supports Caltrans’ statistical data showing a pervasive pattern
of discrimination. See AGCC II, 950 F.2d at 1414. The
individual accounts of discrimination offered by Caltrans and
Intervenors meet this burden.
Fourth, AGC contends that Caltrans’ evidence does not
support an inference of discrimination against all women
because gender-based disparities in the 2007 study are limited
to white women. AGC misunderstands the statistical
techniques used in the disparity study. The 2007 report
correctly isolates the effect of gender by limiting its data pool
to white women, ensuring that statistical results for gender-
based discrimination are not skewed by discrimination
against minority women on account of their race. The original
disparity report discusses this standard social science
technique and explains that “[e]vidence of discrimination
against white women-owned firms should be considered
evidence of discrimination against women of any race.”
Moreover, after AGC’s early objections to the methodology,
the research firm conducted a follow-up analysis of all
women-owned firms, which produced a disparity index of 59.
This index is evidence of a substantial disparity that raises an
inference of discrimination and is sufficient to support
Caltrans’ decision to include all women in its affirmative
action program. See Rowe, 615 F.3d at 243–44.
2. Program Tailored to Groups Who Actually
Suffered Discrimination
The second prong of the test articulated in Western States
requires that an affirmative action program be limited to those
22 A SSOC . G EN . C ONTRACTORS V . C AL . D EP ’ T OF T RANSP .
groups that actually suffered discrimination in the state’s
transportation contracting industry. 407 F.3d at 998–99.
When explaining the justification for the second prong, this
Court seemed primarily concerned with the “random
inclusion of racial groups” in affirmative action programs. Id.
at 998 (quoting Croson, 488 U.S. at 506). For example, the
Court cited the quota system in Richmond, Virginia, at issue
in Croson, which encompassed U.S. citizens who were
“Blacks, Spanish-speaking, Orientals, Indians, Eskimos, and
Aleuts.” Id. (quoting Croson, 488 U.S. at 478). In Croson, the
Supreme Court reasoned that lumping together random racial
groups—particularly Aleuts and Eskimos, for which there
was no evidence of discrimination in the Richmond
construction industry—suggested that the city’s program was
not intended to remedy past discrimination. Croson, 488 U.S.
at 506. After discussing Croson, the Court in Western States
cited to numerous other cases striking down preference
programs that included racial groups for which there was no
evidence that they had actually been discriminated against in
the relevant industry. Western States, 407 F.3d at 998–99
(citing cases).
The issue is whether the Caltrans’ affirmative action
program “is limited to those minority groups that have
actually suffered discrimination.” Id. at 998. It is. The 2007
disparity study showed systematic and substantial
underutilization of African American-, Native American-,
Asian-Pacific American-, and women-owned firms across a
range of contract categories. These disparities support an
inference of discrimination against those groups. See Rowe,
615 F.3d at 243–44. Caltrans concluded that the statistical
evidence did not support an inference of a pattern of
discrimination against Hispanic or Subcontinent Asian
Americans. Although the federal regulations generally do not
A SSOC . G EN . C ONTRACTORS V . C AL . D EP ’ T OF T RANSP . 23
allow states to create affirmative action programs that benefit
some groups but not others, California applied for and
received a waiver in order to limit its 2009 preference
program to African American, Native American, Asian-
Pacific American, and women-owned firms. Caltrans’
program adheres precisely to the narrow tailoring
requirements of Western States.
AGC contends that the program is not narrowly tailored
because it creates race-based preferences for all
transportation-related contracts, rather than distinguishing
between construction and engineering contracts. However,
AGC cites to no case that requires a state preference program
to provide separate goals for disadvantaged business
participation on construction and engineering contracts. To
the contrary, the federal guidelines for implementing the Act
instruct states not to separate different types of contracts.
There are sound policy reasons to not require such parsing,
including the fact that there is substantial overlap in firms
competing for construction and engineering contracts, as
prime and subcontractors. See N. Contracting, Inc. v. Illinois,
473 F.3d 715, 723 (7th Cir. 2007) (explaining that “[i]t would
make little sense to separate prime contractor[s] and
subcontractor[s]” because the same firms compete for both
types of contract).
B. Consideration of Race-Neutral Alternatives
Additionally, AGC asserts that Caltrans’ program is not
narrowly tailored because it failed to evaluate race-neutral
measures before implementing the system of racial
preferences. The law, however, imposes no such requirement.
First, Western States does not require states to independently
meet this aspect of narrow tailoring, and instead focuses on
24 A SSOC . G EN . C ONTRACTORS V . C AL . D EP ’ T OF T RANSP .
whether the federal statute sufficiently considered race-
neutral alternatives. 407 F.3d at 995, 997–98. Second, even
if this requirement does apply to Caltrans’ program, narrow
tailoring only requires “serious, good faith consideration of
workable race-neutral alternatives[.]” Grutter v. Bollinger,
539 U.S. 306, 339 (2003). The Caltrans program has
considered an increasing number of race-neutral alternatives,
starting at 45 in 2008 and reaching 150 in 2010. We reject
AGC’s claim that Caltrans’ program does not sufficiently
consider race-neutral alternatives.
C. Certification Affidavits for Disadvantaged
Business Enterprises
AGC argues that Caltrans’ program is not narrowly
tailored because affidavits that applicants must submit to
obtain “disadvantaged business enterprise” certification do
not require applicants to assert that they have suffered
discrimination in California. AGC relies on language in
Western States criticizing similar affidavits for not providing
“any evidence of discrimination within Washington’s
transportation contracting industry.” 407 F.3d at 1002. AGC
takes the statements from Western States out of context.
Western States did not criticize the affidavits for their role in
the certification process; it chastised Washington for using
the affidavits to serve a completely different purpose: to
demonstrate the existence of discrimination within
Washington transportation industry. Id. at 1001–02. Caltrans
completed its own comprehensive disparity study and does
not rely on the certification affidavits for this purpose.
The certification process employed by Caltrans follows
the process detailed in the federal regulations. See 49 C.F.R.
§§ 26.67(a)(1), 26.83(c)(7)(ii). To the extent that AGC
A SSOC . G EN . C ONTRACTORS V . C AL . D EP ’ T OF T RANSP . 25
contends that Caltrans’ program is over-inclusive because the
certification form does not require that minority firms attest
to the fact that they have been discriminated against in
California, this is an impermissible collateral attack on the
facial validity of the federal Act and regulations. See N.
Contracting, 473 F.3d at 722 (plaintiff “cannot collaterally
attack the federal regulations through a challenge to [a state’s
affirmative action] program”).
D. Application of Program to Mixed State and
Federally Funded Contracts
AGC challenges Caltrans’ application of its affirmative
action program to transportation contracts funded by both
federal and state money. This is another impermissible
collateral attack on the federal program, which explicitly
requires goals to be set for mix-funded contracts. See
49 C.F.R. § 26.45 (recipients “must set an overall goal for
DBE participation in your DOT-assisted contracts”); id.
§ 26.5 (defining DOT-assisted contracts as any contract
“funded in whole or in part with DOT financial assistance”);
see also N. Contracting, 473 F.3d at 722 (no collateral attacks
on federal regulations in challenge to state program).
IV. CONCLUSION
AGC did not identify any of its members that would be
harmed by Caltrans’ affirmative action program. AGC has
failed to establish standing. Further, Caltrans’ program
survives strict scrutiny by 1) having a strong basis in evidence
of discrimination within the California transportation
26 A SSOC . G EN . C ONTRACTORS V . C AL . D EP ’ T OF T RANSP .
contracting industry and 2) being narrowly tailored to benefit
only those groups that have actually suffered discrimination.
DISMISSED.