Narrow Tailoring the Federal Transportation DBE Program

Abstract

Under the Supreme Court’s strict scrutiny test, governments must have both a compelling interest to employ a racial classification in a program and that use of race must be narrowly tailored. After Adarand Constructors, Inc. v. Pena, the Clinton Administration took steps to buttress the Disadvantaged Business Enterprise (DBE) components in the massive federal transportation subsidy programs. The DBE classification which makes firms eligible for preferences in meeting contracting goals relies on racial, ethnic and gender presumptions about which firm owners are economically and socially disadvantaged. Under its “mend, don’t end” philosophy toward affirmative action, new studies and reports were created to provide the compelling interest prong for the DBE program, while some administrative revisions were made to meet the narrow tailoring test.