Oversight, Enforcement, and Extension in Public-Interest Litigation: An Empirical Analysis of Compliance with the Ninth Circuit's Western States Paving V. Washington State Dot Decision
Luther, Robert, Texas Review of Law & Politics
For over a century, the words of Justice John Marshall Harlan's dissent in Plessy v. Ferguson have illuminated the minds of students, teachers, and public officials across the country and the world: "[o]ur Constitution is color-blind, and neither knows nor tolerates classes among citizens."1 In view of this nation's history and the significant policy questions intertwined with public education, it is not hard to understand why the headline Fourteenth Amendment cases of the last decade have concerned the Equal Protection Clause's application to public law schools,2 public undergraduate universities,3 and public grade schools.4
Public contract law, however, is less like the media's darling and more like the redheaded stepchild of law-so much so that even former Chief Justice Rehnquist has described the practice of public-contract procurement as "mundane,"5 and scholarly commentary has concurred with his assessment.6 Nevertheless, much like public education, the practice of public contracting is a vitally important piece of the U.S. economy and is a critical component of Equal Protection Clause jurisprudence. In fact, two of the Court's most influential Equal Protection Clause decisions-City of Richmond v. J.A. Croson, Co.7 and Adarand Constructors, Inc. v. Pena,8-arose from public contract procurement disputes. Thus, as a matter of both significant practical and philosophical importance for those committed to the principle of "Equal Protection under the law," developments in public-contracting law must not go overlooked, just as it must not go overlooked if a government agency secures a contract for the construction or improvement of a public building, road, airport, or implementation of airport concessions in violation of this principle.9
II. THE IMPORTANCE OF PUBLIC INTEREST LITIGATION IN SECURING "EQUAL PROTECTION UNDER THE LAW"
On the other hand, it is often forgotten that litigation is only one of many beneficial services that public-interest legal organizations provide to the public. Long before publicinterest legal organizations file documents in court, they often seek public agency information through federal and state public records access laws in order to become fully informed of the background facts of a potential case. In actively seeking public documents, these organizations are able to determine whether or not federal and state agencies are actually following the law. This often underappreciated oversight function performed by public-interest legal organizations provides an invaluable service to society. A recent example that highlights the significant effect this oversight has had on such agencies in the area of public contracting may be seen through the results of the Sacramento, California-based Pacific Legal Foundation's (PLF or Foundation) Western States Paving Project. To that end, this Article constitutes both an empirical analysis and a five-year retrospective of the Ninth Circuit's Western States Paving v. Washington State Department of Transportation decision.10
III. THE WESTERN STATES PAVING DECISION
In the May 2005 case of Western States Paving Co. v. Washington State Department of Transportation, the U.S. Court of Appeals for the Ninth Circuit considered whether the Transportation Equity Act for the 21st Century ("TEA- 21") violated the Fifth or Fourteenth Amendments of the United States Constitution, either on its face or as applied by the state of Washington's Department of Transportation (Washington DOT) when it awarded race- and sex-based preferences to local public contractors.11 The case arose when the owner of Western States Paving Company, a white male contractor, submitted a subcontract bid on a state contract that imposed a 14% minority utilization requirement.12 Western States Paving's bid was not selected "even though its bid was $100,000 less than that of the minority-owned firm that was selected [and] the prime contractor explicitly identified the contract's minority utilization requirement as the reason that it rejected Western States' bid. …