Associated General Contractors of America v. California Department of Transportation

On September 14, 2009 ACLU Foundation of Northern California and civil rights allies filed a motion to intervene in Associated General Contractors of America v. California Department of Transportation.  The lawsuit, currently pending in U.S. District Court in Sacramento, was brought by the Pacific Legal Foundation and seeks to dismantle Caltrans' Disadvantaged Business Enterprise (DBE) program. The DBE program aims to give minority and women-owned businesses equal opportunity to compete for federal contracts. The ACLU Foundation of Northern California motion to intervene was filed on behalf of small businesses led by women and people of color who support the DBE program and oppose the lawsuit.

Caltrans has established a framework for ensuring fair participation in federally funded public works projects in California, but has faced challenges. In 2006, Caltrans suspended the program's race- and gender-conscious elements after a federal appeals court ruled that states had to document the existence of discrimination in the awarding of contracts. As a result, the number of women- and minority owned businesses awarded Caltrans projects plummeted -- from nearly 11 percent in 2005 to just 2.2 percent in 2009.

In 2007, an extensive disparity study commissioned by Caltrans documented discrimination against small businesses owned by women and minorities in federally funded contracts. Caltrans then sought approval from the U.S. Department of Transportation (DOT) to reinstate the suspended elements as a necessary remedy to such discrimination. DOT granted its approval in August 2008, noting that Caltrans had a duty under federal law to reverse the steep decline in participation.

In June 2009, Caltrans' procedures were challenged in the pending lawsuit filed by the Associated General Contractors of San Diego.

The ACLU Foundation of Northern California filed the motion with the Lawyers' Committee for Civil Rights of the San Francisco Bay Area, the Equal Justice Society and the law firm Bingham McCutchen LLP on behalf of the Coalition for Economic Equity (CEE) and the San Diego Chapter of the NAACP.