Milwaukee County Pavers Ass'n v. Fiedler, s. 90-1747

Citation922 F.2d 419
Decision Date15 January 1991
Docket Number90-1793,Nos. 90-1747,s. 90-1747
Parties57 Empl. Prac. Dec. P 41,072, 59 USLW 2442, 36 Cont.Cas.Fed. (CCH) 76,003 MILWAUKEE COUNTY PAVERS ASSOCIATION, et al., Plaintiffs-Appellants-Cross-Appellees, v. Ronald R. FIEDLER, individually and in his capacity as Secretary of the Wisconsin Department of Transportation, and David Manning, individually and in his capacity as the Department's Minority Business Programs Director, Defendants-Appellees-Cross-Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

Philip Bradbury, Joseph Melli, John R. Sweeny, Melli, Walker, Pease & Ruhly, Madison, Wis., for plaintiffs-appellees.

Charles D. Hoornstra, Asst. Atty. Gen., Office of the Atty. Gen., Wisconsin Dept. of Justice, Bradley C. Williamson, Lafollette & Sinykin, Madison, Wis., for defendants-appellants.

Before POSNER and FLAUM, Circuit Judges, and FAIRCHILD, Senior Circuit Judge.

POSNER, Circuit Judge.

An association of highway contractors in Wisconsin brought suit to enjoin, as a form of affirmative action or reverse discrimination that violates the equal protection clause of the Fourteenth Amendment, programs by which the State of Wisconsin sets aside certain highway contracts for firms that are certified as "disadvantaged business enterprises" and also requires highway contractors to give preferential treatment to subcontractors that are so certified. The reason the latter as well as former feature of the programs harms the contractors is that it both requires them to award some subcontracts to contractors that are not the low bidders and (like the prime set-aside program) limits their own ability to compete for subcontracts. The programs are of two basic types, which the district judge treated differently in her opinion. 731 F.Supp. 1395 (W.D.Wis.1990). In the first type of program the state is the principal, rather than an agent of federal highway authorities, because the state receives no money from the federal government; this the judge enjoined, on the authority of City of Richmond v. J.A. Croson Co., 488 U.S. 469, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989), and the state appeals. In the second type of program the state is the administrator and disbursing agent of federal highway grants; this the judge refused to enjoin, on the authority of Fullilove v. Klutznick, 448 U.S. 448, 100 S.Ct. 2758, 65 L.Ed.2d 902 (1980), and the association appeals.

Croson holds that the equal protection clause forbids states and municipalities to discriminate in favor of blacks and other minorities unless the discrimination is necessary to rectify discrimination against the favored groups. Wisconsin has made no effort to show that its program (for we are speaking now of the program that the district judge enjoined) is remedial in that or any other sense. But it argues that Croson does not govern here because the discrimination is not racial in character, the favored class being defined not as minority business enterprises but as disadvantaged business enterprises. "Disadvantaged" means excluded from the mainstream of American economic life, and the agency of exclusion need not be discrimination. An Appalachian white male might be disadvantaged in the relevant sense.

All this is fine but ignores the fact that the state presumes a black, but not an Appalachian or any other sort of white male, to be disadvantaged. The presumption is, it is true, rebuttable. But it seems to us (we can find no decision on the point, save another district court decision which relies heavily on Chief Judge Crabb's opinion in this case, Contractors Ass'n v. City of Philadelphia, 735 F.Supp. 1274, 1292-1307 (E.D.Pa.1990)) that a racial presumption is a form of racial discrimination, as would be obvious if the state had a rebuttable presumption that black subcontractors ought not to be permitted to work on state highway projects. And a majority of the Justices of the Supreme Court believe that racial discrimination in any form, including reverse discrimination, is unconstitutional when done by states or municipalities, unless the purpose is to provide a remedy for discrimination against the favored group. City of Richmond v. J.A. Croson Co., supra, 109 S.Ct. at 721 (plurality opinion), 735 (concurring opinion).

To trigger the presumption of disadvantage in the Wisconsin state programs, a subcontractor need only establish that 51 percent of its owners fall into one of four racial-ethnic groups (black, Hispanic, Asian, American Indian) or is a woman. Anyone who is not a member of one of these groups must prove that he is socially and economically disadvantaged in fact. The presumption can be rebutted, but given the difficulty of establishing whether a particular individual is socially and economically disadvantaged the availability of the presumption is likely to be decisive. This means that the state is conferring a significant benefit--access to a presumption of social and economic disadvantage that is the key to valuable entitlements--on grounds that Croson forbids a state to use without establishing that the purpose is to rectify invidious discrimination. The state can if it wants redistribute wealth in favor of the disadvantaged, but it cannot get out from under Croson by pronouncing entire racial and ethnic groups to be disadvantaged. The whole point of Croson is that disadvantage, diversity, or other grounds for favoring minorities will not justify governmental racial discrimination other than by the federal government; only a purpose of remedying discrimination against minorities will do so.

There is a possible exception. Croson is about favoritism toward racial and ethnic groups, not about favoritism toward women. The Supreme Court does not consider discrimination against women to be as invidious--as harmful and as difficult to justify--as discrimination against blacks or other racial minorities; nor, to come to the point, does it consider discrimination against men to be as invidious as racial discrimination. Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976). (In treating sex discrimination less severely than racial discrimination, the Court is following a distinction in Title VII of the Civil Rights Act of 1964, which establishes a defense of bona fide occupational qualification for sex discrimination but denies it for racial discrimination. 42 U.S.C. Sec. 2000e-2(e)(1).) So maybe the state's program, insofar as it favors women, is not controlled by Croson. The state has waived the argument, however, by failing to make it, and by its silence has thus conceded that Croson applies to affirmative action in favor of women just as it does to affirmative action in favor of blacks and other racial and ethnic minorities. We need not decide whether this was a prudent concession. On the one hand it can be argued that if discrimination against women is not so invidious as discrimination against blacks, the case for using discrimination to remedy past wrongs is less urgent; the past wrongs were less severe, less harmful. On the other hand it can be argued that if sex discrimination is not so serious a wrong as racial discrimination we need not worry about confining its use to the remedial setting.

In neither Kahn v. Shevin, 416 U.S. 351, 94 S.Ct. 1734, 40 L.Ed.2d 189 (1974), nor Orr v. Orr, 440 U.S. 268, 99 S.Ct. 1102, 59 L.Ed.2d 306 (1979), both involving state laws discriminating against men, did the Supreme Court insist that the law be shown to be remedial within the meaning of Croson. But of course those decisions predate Croson. What vitality they retain is an issue we shall leave to a case in which the issue is preserved for appeal.

The basic question raised by the contractors' appeal is the proper characterization of the state's role under section 106(c) of the Surface Transportation and Uniform Relocation Assistance Act of 1987, P.L. 100-17, 101 Stat. 132, 145. The Act offers the states financial assistance with highway construction. Of course this assistance comes with strings attached. Section 106(c)(1) requires that 10 percent of the amounts appropriated under the Act "be expended with small business concerns owned and controlled by socially and economically disadvantaged individuals." Regulations issued by the federal Department of Transportation to implement this provision establish the very definitions and procedures discussed above in connection with the state program, 49 C.F.R. pt. 23, subpt. D--for that program piggybacks on the definitions and procedures in the federal regulations. The regulations also establish criteria and procedures by which a state can seek an exemption from the 10 percent minimum set aside for disadvantaged enterprises. 49 C.F.R. Secs. 23.64(e), 23.65. The receipt of funds under the federal Act is voluntary, but a state that decides to receive such funds is bound by the regulations. 49 C.F.R. Sec. 23.63. Oddly, the regulations fail to mention women as one of the groups eligible for the presumption of disadvantage. 49 C.F.R. Sec. 23.62. That is because the regulations date from a 1983 highway construction law and women were first made beneficiaries in the 1987 version, the one in issue here. The regulations were amended to include women, 49 C.F.R. pt. 23, subpt. D, App. A, Section-by-Section Analysis: Section 23.62 Definitions, but amended clumsily, so that the intention to entitle women to the presumption remains obscure as a matter of...

To continue reading

Request your trial
48 cases
  • Equity in Athletics, Inc. v. Department of Educ.
    • United States
    • U.S. District Court — Western District of Virginia
    • August 21, 2007
    ...is merely a collateral attack on the statute and regulations and is therefore impermissible. Milwaukee County Pavers. Ass'n v. Fiedler, 922 F.2d 419, 424 (7th Cir.1991), certiorari denied, 500 U.S. 954, 111 S.Ct. 2261, 114 L.Ed.2d Kelley, 35 F.3d 265, 272 (7th Cir.1994). Likewise, relying o......
  • Board of Supervisors v. Local Agency Formation Com.
    • United States
    • California Supreme Court
    • November 9, 1992
    ... ... BOARD OF SUPERVISORS OF SACRAMENTO COUNTY et al., Plaintiffs and Appellants, ... LOCAL AGENCY ... (See Milwaukee County Pavers Ass'n v. Fiedler (7th Cir.1991) 922 F.2d 419, ... ...
  • Billish v. City of Chicago
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • July 8, 1992
    ...minorities unless the discrimination is necessary to rectify discrimination against the favored groups." Milwaukee County Pavers Ass'n v. Fiedler, 922 F.2d 419, 421 (7th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 2261, 114 L.Ed.2d 714 (1991); see id. at 421-22 ("And a majority of the Jus......
  • Coral Const. Co. v. King County
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • August 8, 1991
    ...719; see also Metro Broadcasting, Inc. v. FCC, --- U.S. ----, 110 S.Ct. 2997, 3008, 111 L.Ed.2d 445 (1990); Milwaukee County Pavers Ass'n v. Fiedler, 922 F.2d 419, 423-24 (7th Cir.) ("The joint lesson of Fullilove [v. Klutznick, 448 U.S. 448, 100 S.Ct. 2758, 65 L.Ed.2d 902 (1980) ] and Cros......
  • Request a trial to view additional results
1 books & journal articles
  • 7th Circuit upholds disadvantaged business enterprise program.
    • United States
    • Wisconsin Law Journal No. 2007, November 2007
    • January 15, 2007
    ...NCI appealed, but the Seventh Circuit affirmed in a decision by Judge Ann Claire Williams. In Milwaukee County Pavers Ass'n. v. Fielder, 922 F.2d 419 (7th Cir. 1991), the court had held that the federal government's interest in remedying discrimination provided justification for a state to ......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT