barrett i are pleased to welcome this morning to the bench of the honorable james peterson united states district judge for the western district of wisconsin who has volunteered or been drafted to assist us in our  work with the day's cases first case for the day is number fifteen eighteen twenty seven midwest fence corporation or against united states department of transportation and others cross motions of all parties the judge was in favor of the defendants and against my client midwest fence before proceeding i would like to thank the court for the opportunity to be here and to be heard this morning there's obviously a great deal to cover so i will be guided by comments and questions from the court and those items that will be emphasized i was going to begin will begin with standing  obviously critical preliminary matter i diot defendants were the ones to raise a standing on appeal and they claimed that fact as a company is small enough that it does compete with d b s all the time it serves usually as a sub contractor on the public projects and its expertise is limited to guardrail and fencing and  various obviously to be a large general contractor one needs a great deal of skill and expertise beyond one or two line items like midwest fence or i might add typical g b e s done a bit was such a contractor the case involved only one large general contractor in this court noted that done it be did not in fact compete with any d b s for that job and was treated the same as other general contractors competing for most of the principle problem and contract and as a consequence any harm and may have been done to done it and he was redress independently by the action of the state but was it also part of the reasoning and on it be that  contractor undone that day like midwest fence would not itself qualify as d b so that the burden was not because of the race of its owners and that that part of the rationale does seem to apply here because there's the stipulation that parties entered that it's not because of reps or guesses that is the standing issue the part of the standing issue into the bay that doesn't seem to be addressed by the points that you look at it a couple of points to answer the court's question first we have to keep in mind there are two ways in which one might see the being discriminated get and against two steps the first step would be case but the second step is the one that really counts i mean so a person is not certified as a d b e well so what so what means they're not going to be able to compete fairly and fairly against the well that's precisely the situation we have here in the test for standing has been set forth clearly by the supreme court in the northeastern florida case it's it's northeastern florida chapter necessary to lose a contract so the really key step here in terms of what constitutes discrimination or honor would be the inability to compete an equal footing with d b s and in fact midwest lost millions of dollars to d b s fact discovery was still open in the lower court but we put in evidence of that which we stand you address if you would the the standing to challenge the t m p yes  and equity apply has the target market program actually been applied to contracts your client is beautiful and no in a couple of clarifications on that your honor we can't bid  on something that's been selected for the target market because only a minority owned and women owned businesses are permitted to to bid on those now they should talk about the target market program exists in districts in the involved set of sides of selected line items for minority owned and women owned firms and yes your honor it is true the state has carefully avoided selecting guardrail and fencing as such an item they have however given us no reason why they might not in the future and i'm not aware of any evidence where that might not be your moodiness cases all assume all start from the proposition that the defendant has already done something bad to the point of right and no they start from the proposition that we have us ever program in place which we assert is unconstitutional on its face because  constitutional set aside and quotas and that can turn on us any day just as in the mountainous case now i should correct myself a bit your honor technically the court is right because we obviously are asserting we have standing for the reasons that i've just given so the target market program can be viewed as kind of an appendage of the other program but those would be our grounds for standing and i see no reason why the court had been my plan to let the defendants bring the motion and let me ask one question about that i took a look at the at the at the new report as it's a big document but it seems largely to  assertions that were made in the reports that are before the court and so i guess my point question to you on that it is their motion but my question to you is what's in the new report that you need in in your case here what's new in that the court and what those two people show are what they call the disparity index and if you have an index of one hundred percent you have a perfect utopian situation of complete utilization in accordance with availability of below eighty percent it starts raising eyebrows and people might look to see if there's any discrimination going on but what this team will show that hispanic americans are utilized true hundred and thirteen percent disparity and x which means that they're all realized really more than double what they should be whereas african americans and i can't remember the exact percentage around or it was a very small percentage little eason's as well were over utilized over one hundred percent but let me let me ask you just on that and then on the record question wasn't that information also and earlier earlier reports mean that that information is available to the court through holes testimony was it was wasn't that over he alleged overutilization available in the two thousand and six i do not recall it coming about that you've emphasized in your briefs how flexible affirmative action programs like this have to be to stay constitutional right you know both defendants and we have flexibility is  used in different senses by each of us the answer is yes it's important right yes yes and state officials like the ones administering these programs presumably have to stay attuned developments and changes in the market correct absolutely ok so new information comes along how quickly are they obliged to digest that information and act upon it well in this case it would be a very simple matter to state it which incidentally the prior study done for the tollway recommended but was rejected by that way we can talk about that later it would be a very simple thing for the court for the state to decide that for the for the contra goals of d b participation that would be limited to women known an african american on firms  my point my point mr de shill is that all of this is new information that was not available to the district court one would expect  monitoring and continual fine tuning of these sorts of programs to constantly get new information and need to be adjusting it all the time so why do you need this on appeal why is it fair to the defendants to use it on people i've got a couple of reasons first question why do we why do we need it on appeal remember they're reviewing data past data so that's where you know as well always going to be competing and we have suffered damages we should be aware of there and so should the court and secondly we're also seeking prospect of injunctive relief and the court should be aware that there's an and be prepared to order if necessary  that there is appropriate adjustments to be made for this data and as i mentioned to the court it would be quite simple it's none so it was the case in this case it's a very simple matter for the choice to adjust its program to accommodate this new data what ms holt in her company did was to perform a survey of general contractors regarding the total amount of sub contracting that they did in terms of  dollars so then means they have that data at least they have some kind of estimate of that of your total sub contracting dollars and all that means it would not just include d b s but it would include the ninety be subcontractors so that we would he have some kind of metric or quantify quantity that we could look to to determine the burden on the innocent third parties who bear the brunt of the burden namely your smaller ninety be contractors so contractors in other words they have the data but they don't tell us what it is anywhere in the report that would be the other aspect of this new report that i find very very or moving on to the merits of the case there is an overarching constitutional question which really needs to be addressed at the o regulations or any federal statutory regulatory scheme period now i start from that promise and i mention it because if anyone does disagree i'd like to address it now otherwise i'll be moving on to discuss northern contracting that there is a substantial basis for a need for some d b e program for the tollway in the department of transportation i know that you dispute that but let's assume that there is some i understand your argument to be that there is an unfair mismatch between the remedies adopted to correct and the problem because the burden is put on people on businesses like you're quite right as direct ok i guess part of my concern that argument seems to assume the prime contracting and sub contracting are entirely different markets near the twain shall meet and i'm wondering how valid that assumption is i thought your client did some prime bidding some of the people that are normally prime bidders also do some subcontracting getting how sharp are the differences and what is the record tell us yet that there's a very important question there not absolute differences the court is correct but it is to the point where it's it's kryten difference it's simply cannot be denied no one needed to look at it easily as by the uniform reports dollars vs receive each period how much of that is from prime contracting and on much of that is from subcontract and it's overwhelming majority comes from sub contracting dollars so that tells us the story is a court order not it's not absolute but you'll note even in the regulations themselves they talk about something called unbundling and they have the characterized properly unbundling as a race neutral alternative to encourage and help g b east a bit by un bundling what is meant is a large large general contract instead of being let out as a single contract is broken up into many different contracts so that each each of the contracts actually let by i doubt or the tollway well a general contract is small and limited to one or a few types of work so can be handled by your smaller contractors and it can be handled by a d b my point even the regulations are acknowledging the difficulty of d b s to service general contractors and we've had some admissions that i doubt has made it as pleading that we have cited in our brief where they have noted d b s simply cannot perform the large general contractors we have uncontested testimony from i doubt its own chief engineer omar osman which we've also cited in the brief where he explains the d b s cannot do perform large general contracts because it requires such vast amounts of resources and expertise and d b s tend to be smaller and specialized like mcfly and midwest fans so no your honor you're right there are occasions absolutely when devious can serve as general contractors but they're limited they cannot perform the huge types of contracts can you direct us to case law that indicates we need to slice the market up that final in terms of looking at you know your client is seems to be in the nishi of guardrail and fencing right that's their specialty it's not all they do but they that's their big thing right what they do ok that's what they do but you know we've got evidence in front of a showing pretty broad patterns of discrimination in highway construction generally we've got the zero goal experiments that both i dotted and the toll road if you want to tell me about those i'd be interested in that but given the fairly broad evidence of discrimination in the absence of these programs why does the program have to be as finally tuned as you are arguing and what case law tells us that well  to be is finally tuned because some contractors receive only much less than half of the total dollars yet they're being asked to bear the burden of d v ease sharing in all this money that goes in some of the lower court cases and you'll notice i have a little bit of gray here only a little bit left you're lucky and i heard it all believe me and then my and it goes back to litigation  guardian briefly in presuming that yeast is if it was obvious to everybody else and it's not what we have here i think it is something complicated industry it can vary from state  state to you know the self performance requirements for example of illinois i'm not sure of how many other states have those that can change things considerably only and maybe they just frankly blew it and then tell the courts about it go ahead it's a caution you're in your rebuttal time thank you very much for and i appreciate the overarching issue of the constitution i have mentioned i didn't hear anyone disagree with a promise early contract and should be read very carefully because of course in that case a challenge to the federal regulations had been forfeit there had been the earlier summary judgment for the united states defendants since that was never appealed well the law of the case before this court was of the regulations were constitutionally valid in all of its holdings and reasoning emanate from that the which been interpreted by the state is all they ever have to do is just follow the regulations which means the regulations in practice and on only for the past eighteen years have been trumping the constitution which i find as an officer of the court very scary there are burden of meeting the d b e goal falls just proportionately to the sub contractors rather than the prime contractors or rather contractors generally is it your contention that guardrail and fencing is one of the sub con there's there's more dollars typically to that so the general contractors can meet their d b goals by going with a larger subcontractor bill items and gargling friends who tends to be one of them so thank you thank you please the court robert cops on behalf of the united states i'm here to discuss the facial constitutionality of the federal contracting program for d v d s this court should affirm the well reasoned opinion of the district court and should join the eighth ninth and tenth circuits and up holding the facial constitutionality of that federal program the federal program your honour's has all the hallmarks of a narrowly tailored program with respect to the use of race conscious measures race conscious measures can only be used under the program if race neutral measures prove insufficient d b s can and do compete as prime contractors under the regulations your honors and if they win contracts when a bare race is not taken into account that counts towards a state's overall goal was to understand your putting your point about facial constitutionality do you think it because those regulations are so flexible you think it's possible for a state to apply them in such a way that is to violate the constitutional standards we don't believe so your honor when i will it be because your honors the the regulations provide a framework that requires the states to if the states are complying with the regulations then they're meeting their constitutional requirements we suppose suppose waivers are there real vailable on paper but not in real reality we're suppose program then that would be an instance where somebody could raise an as applied challenge against the united states and i guess i missed you know i'm talking about the state making waivers with individual contracts unavailable as a practical oh the good faith efforts portion your honor i'm sorry your honors if if then they would not be complying with the they would be violating the regulations if they were not actually providing good faith effort s considerations under the regulations and we don't actually consider them a waiver they are a means under the regulations by which individual contractors can satisfy their regulatory requirements and if there were an instance where a state had a state was not granting any good faith as good faith efforts considerations whatsoever then they were it in fact be violating the regulations so i take it you don't disagree with set within the federal program or is that left of the state to determine based on its local conditions are big you can be and still be a d v e that those are a federal requirement your honor and with respect to and that applies minorities and nine non minorities may participate in the program if they can demonstrate social and economic disadvantage and in fact in the history of the program nationally there have been white male firms that have qualified as and again as long as they fall within the economic limits on their personal wealth of the owners as a side the revenue of the business that's correct your honor and is that indexed to inflation from out of the government sector i believe so your hon larger company are not likely to be ones that d b e can successfully pitch for that's true honor yes but that we believe that actually goes to the narrow tailoring of the program because it limits the use of race of race conscious individual contract bowls with respect to subcontractors to those firms that are most socially and economically disadvantaged so there's an argument for it but it is true what midwest votes contends that it tends to put the d b e participation goal on the sub contractor side in part by design because you want the smaller businesses to get the benefit of the d v d program yes your honor but it's important  remember that those individuals up contract roles only come into account if race neutral measures prove insufficient and in fact there are six states currently that are operating their individual state programs wholly using race neutral measures and so only when those race neutral measures prove insufficient can a state take and take race into account and so that that limits the the use of race in the program from a from a program matic standpoint my second question about  the non woman non minority participation in the d v what just by way of example what are some of the circumstances in which white males have been able to show that they would qualify as disadvantaged within the meaning of the main points that plaintiff raises goes towards the burden that is placed on d b s on non d v e sub contractors under the program but it's important to remember that the regulations themselves prohibit overconcentration in a particular line of work and so if there were an instance where a particular non d b s were being frozen out of a particular line of work the state would be required to address that over concentration so what do you do to monitor them while there can the states have the discretion to either actively monitor it themselves which some states do for example the state of georgia alternatively states could respond appropriately when a claim of overconcentration comes and and investigate based on local data and local market circumstances whether there is over concentration or other standards for quote overconcentration there  t has not prescribed a national definition of what overconcentration is your honor in part to refuse to recognize that in each state local market circumstances are going to be different we do not believe that this case requires the court to do any sort of line drawing because under any definition plaintiff would not qualify in the years leading up to this litigation plaintiff outperformed its d b e competitors all of them except for one  least fill me with this problem of how specialized or narrow the market analysis needs to be in the serial given fairly broad evidence of discrimination in highway construction industry generally how type tightly focused on particular subspecialties or leashes does the analysis have to go well your honor  i think that under the regulations there rather really is rather particularized look into the discrimination in each of the sub parts of the industry as part of the state's goal s process at step one and in the their goal setting process they do need to look at what they do but the evidence of discrimination is within the state and they typically do so with disparity studies that take a focused look the different firms within the state there are different lines of work and where there might be discrimination and then in the and then when they actually implement the program on an individual contract by contract basis they look at local market circumstances which include the lines of work that are going to be used on a particular contract what the d b e availability is on those lines of contract and including geographical areas where the contract might be implemented and so under the regulations we actually believe that there is a very focused look in terms of where the discrimination might be within the state and within the contracting industry  and your honour's say it think it's important to emphasize the flexibility that the federal regulations provide to a state in terms of their implementation under the federal program waivers are always available to a state should they require them in terms of implementing the program to tailor it to their local market conditions and quotas are strictly prohibited as well under the federal program of a question about the the burden on non participants midwest spends here as a kind of an overarching theme that it's being asked to shoulder a disproportionate amount of the burden on the of the d v program does the federal program have any standards for the burden on non d b e firms you know i think that the case law of this minnesota throughout the briefing is that the burden is supposed to be diffuse and light but i don't know if there is any kind of operational definition provide any further prescriptive definition to give states the flexibility to determine it based on their local market conditions the contracting industry within illinois alaska florida they're all going to be different and  so there is the requirement that if there is an undue burden then the state must address that but the state is allowed to is is unable to really to make that determination based on local market and it seems to me with that there's a look at the program  the concept of overconcentration is the point in the program where that issue is addressed as is or anywhere else where i'm sorry seems to me that the concept of overconcentration that the federal program requires those states to monitor and prevent over concentration that seems to be the one area in which the burden on non participants is addressed i do not know i disagree your honor because the framework of the program as a whole those contract goals can only come into play if race neutral measures prove insufficient and as i mentioned earlier there are six states that are implementing wholly race neutral programs and then with respect to the use of an individual contract well the state must tailor it to local conditions in addition with us as far as d b s vs non d b s it's important to remember that with respect to the burden placed on non minorities under this race conscious program non minorities can and do qualify as d v d s under the program but i ask you on the standing problem that we have to deal with the  this case do you see any tension between some of our language and the done it may opinion in the supreme court standard in northeastern florida iran or the united states is not take a position and i know that i mean asking you to comment i'm afraid i'm not authorized to speak on that matter and with respect for the separation of powers i will press further your honour's  we reiterate that this court should join the eighth ninth and tenth circuits and upholding the official constitutionality of the federal program recognizing that many of the questions in this case concern the states and lamentation of the program unless this panel has any further questions i'd be happy to yield my the remainder of my time to that counsel fried and one last quick question for me at least and i maybe i know i have seen in the papers here a reference to a rule of thumb about price differences of five percent or so is not a federal standard that in terms of how much extra the government should be willing to pay for d b e participation no your honor that things that we've seen that was wrong with the district court's application of done with done that day is because as listed this you'll start off by saying oh what we've got to determine have we served in injury in fact and are we being put on a different level of foot but what this court says and done the bank is you can only do that by showing a denial of equal treatment that resulted from the imposition of a racial barrier and that is what has not been done in this case mr de shield in no way shows by anything that's been done that there has been the imposition of a racial barrier you take for instance the tolly with the tollway the only is he must show us the imposition of a racial barrier i think the second thing that the district court did wrong in this case was there was a misapplication of the standard in the north eastern case and you point standing one to get to show the causal connection between the injury and the challenge contra meaning that the injury was fairly traceable to a challenge conduct to three you get to show a likelihood  that you have to do beat compete against the b s or whether but it isn't the only thing denial you shown legal treatment with because of your socks and that is the only thing that they've done in this particular case they've not shown the imposition of of a racial barrier and we say they have no standing in this case you're not suggesting the targets are racing is neutral measurer in that the targets for know i guess i had understood the northeastern florida decision to apply frankly a fairly relaxed standard of standing in such cases but it's the supreme court telling us to do so because what they're focused on use competing on a level playing field and absolutely but i think what this court did down it bad judges said well far with it could even be a ability could come in and if you have the kind of circumstance in northeaster which was the plain good old fashioned set aside that is not true in this case and that's why undone it baby they said no if you don't have that primary it should be excluded because the study was not addressed by the parties or the court in this case but let's go right second to one that i think that  fisher that you brought out this well look what exactly is it that you want out of this collapse study and i'll tell you what it is judge it's page eighty nine and only on that page eighteen what he wants you know is that he wants to use the statistic to show that hispanics he says were over utilized but what's wrong about this judgment so as you said isn't this just a recap relation of what we have and that's absolutely true because what happens is judge hope in this study decides that nothing should be changed she says well look i guess i've looked at all of this but i'm not changing anything for any of the parties including  the third thing that's wrong with mr de shields position is that what he really wants to do is cherry pick in this case i would just address point out to you page thirty one of his br of which he says well look i don't want the whole study in but where why don't you just go two pages further on page thirty three in footnote thirteen he says and by the way you know and the reason he says the footnote thirteen that he doesn't want that part is because he says misquote doesn't know anything about statistics and that your orders are to exclude that part but take the part that page eighty nine that i wore to the test well you can't have it both ways and he's got two different things in his brief and he really in this particular case automatic have neither and digest this material well the truth of the matter is that the board hasn't even had an opportunity to act on this piece of information nowhere is that that that you know are things with respect to this and therefore with with with just that in mind that's another reason that we don't believe that this report should be accepted let me let me just follow up on that i guess ron i mean i think obviously the general rule is that you don't get to bring in evidence this this late in the game but let's assume that they get over that pretty substantial hurdle when we consider that doesn't the actual evidence of the utilization of his hispanic contractors and asian contractors suggest some deficiency in the way that the program is narrowly tailored to the discrimination that actually exists in the road construction and you know i don't think that charge  c that this is about i can only anticipate what miss home is going to say but having dealt with this hope for a number of years what she is going to say is that i looked at the whole thing i looked at the anecdotal evidence i looked at the other you could draw from this data is that the program is working for asian americans and hispanic americans but that minority groups that need it the most african americans and women to a less pronounced the still significant degree are actually now not going to be the beneficiaries of it so much because the prime contractors are satisfying their d b e goals with hispanics and asians and large are going to merican and women are going to get much bang out of this program but i think then we have to go back to as judge hamilton says whether this information that we receive is constantly changing and one of the things that i think that the board with the tollway and everybody who receives has to believe changing information is we have to make some adjustments and it's not to say we just haven't been given an opportunity to make those adjustments and i think that will probably take every do zero go what we find out is that minorities are not used with the same degree that they would be used during the course of the program and i'd like to suppression dropped off a cliff didn't absolutely off the cliff and what it shows is that shows us that we have to do it all the anecdotal evidence you will say you will see every one of the minority of sag that without this program we would not have work reliability of the tollways utilization numbers where we've got some different figures for over the early two thousand celeb and twenty four percent zero point one percent and one point that count go way back to two thousand and two were the numbers in the first northern contracting case and those days we were not a party at that time and using the best figures that we had available at that time because we were doing that kind of statistics that certainly we do once we develop got started with the mirror program we gave the best official available figures we ca figures show a discrepancy and quite frankly well the bobo shows significant underutilization exactly ok but they're still there in terms of reliability there's a big difference between if you're telling us that the  studies more reliable i get that yet and judge we have to admit that with the first figures we got it was at a time when we were not parties to the case and we were scrambling to find the best available figures the quite frankly none of the studies or anybody that including mr sherrill or anybody has ever given us anything to say that look your program has overconcentration tollway particular question i'm a little bit unclear about the way the individual contract goals are set i understand we have the overall goal of i think it's generally been twenty two point seven seven studies divided into what they call the next codes and those next codes have what kind of work you can get a greater weighted availability if it's the kind of work that's done by the particular agency so what's not when you go to the table for that and you look at it it has nero's availability numbers so that in the short of can sort of this where you're where you're where you're looking at it you're saying what your total dollars are in this particular area there next codes for that you say what kind of line of work then the next codes for that so all you have to do is match this up with the they'll ability that's done by you but with the statistics of near or which you know which is which are unassa then that's how you come up but with the goals so you look at a line you you look at the study that says there's d v availability of thirty three percent in that line item that's the goal for that line item and you add them up who's your daddy who is a lawyer and i mean that as a compliment so i urge the court to affirm the district court's entry of judgment in i dots favor and we adapt the federal government's arguments with respect to the facial challenge to the program here and we also don't see any non forfeited argument that the court should overrule northern contracting which this court recently be affirmed in the dunnit beta cision their opening brief does not say that it should be overruled it simply says that the case is distinguishable because in that case there was summary judgment entered against the federal government in the district court and that was not appealed a fair reading of the northern contracting case shows that that is not the essence of the opinion the essence of the opinion is that to the extent that the federal government prescribes regulations that govern the implementation of this type program with federally subsidized road construction funds then the state is deemed to have acted to have narrowly tailored its program on an as applied basis provided that it does not exceed its federal authority either by a violating some mandate of the federal regulations or failing to do something they're required to do were doing something they're prohibited from doing there was no argument in this case that i doubt has done either of those things in essence it has complied with the federal federal regulations it is not exceeded its authority if the court felt inclined to reach out in reconsider northern contracting and the we would nonetheless insist that the program that is federally subsidized for the same reasons that apply to the soul the state funded aspect of the program which is about fifteen percent of the total spending for i doubt it satisfies the strict scrutiny standard as articulated by the united states supreme court and is refined by a subsequent case law in this and other circuits that strict scrutiny strict scrutiny we don't suggest that anybody deserves an easy pass when you are incorporating race conscious measures into a program of this variety but i want to emphasize that this program is something that is built upon a longstanding understanding of the the unfortunate history long and widespread of invidious discrimination in the road construction industry throughout the country and in illinois and the supreme court has made it clear that government has a compelling interest in red dressing and responding to such discrimination not just by itself in its own contracting decisions which would be the letting the prime contracts but also when it's putting money into an industry where there's discrimination going on in the private sector and it has a compelling interest in dealing with that discrimination one step removed so here the test is not did the did i got convincingly in dispositively prove that there was actual discrimination although we think the evidence probably would meet that past but instead whether there was a strong basis in evidence to conclude that there was such discrimination and the continuing affects of that discrimination are affecting the road construction industry let me ask you a question about this one of the things that happened here is that the issue was decided on summary judgment even though the district court acknowledged that dr gurrey on this testimony to some degree undermined  case for the reasons that are or the facts and circumstances that are presented it was appropriate for the district court to enter summary judgment that has multiple aspects that inform that conclusion first the ultimate legal question of an equal protection violation is largely reviewed deneuve to the extent that there are genuine issues of fact in their material then of course you have to take those in the light most favorable to the plaintiff in this  case because the summary judgment but the standard review is sort of like a first amendment case it's sort of independent review because you have an ultimate constitutional question the application of the legal standards to the facts presented then the court of review engages in a slightly more searching review as to the ultimate findings of strong basis in evidence and narrow tailoring and so that the question is not did the district court or quit have properly found that there was actual discrimination to support a compelling interest but rather was there sufficient evidence so that this court can conclude as a matter of law that the strong basis in evidence test has been met and we suggest that the record does show that in addition discovery was closed on liability issues there was a deadline to file cross motions for summary judgment both sides did all their cards are up on the table now so this court can evaluate looking at all of that evidence whether it believes there is a genuine issue of material fact with respect to the strong base as i said i stare and wait but as my day job is a district judge i'm very aware of stretches from the seventh circuit that even across motions or summary judgment you don't decide the facts that's that is certainly true and at some point there is a law drawn where the evidence presented enables you as a district court judge or the seventh circuit  review one of the appropriate standard to say that it can conclude as a matter of law that any genuine disputes regarding historical fact do not rise to the level of a genuine issue of material fact in light of the constitutional standard which presents a question of law we also suggest that there is plenty of other evidence besides just the underutilization evidence to support the strong basis in evidence finding here there are as judge hamilton indicated the zero hole studies not done just by the tollway but also done by a i doubt there were extraordinary revealing in terms of what happens when there is nothing done to try and and to deal with the long pervasive history of invidious discrimination in this industry top of that there is anecdotal evidence we do not rely upon that alone to support the strong basis and evidence finding there is the the original nearest that shows the disparity between the availability of available d v e's minorities and women firms and their utilization that evidence was reaffirmed by u pdated evidence in the mason tilman study in two thousand and eleven that study in addition conducted a regression analysis to try and isolate specifically the factors that correspond to the lower business formation business for earnings and access to lending that is suffered by minority and women owned firms and concluded that in all probability discrimination was the reason for those specific spiritus so there is a wealth of evidence to some it let me ask you about the subject of the regression studies i don't understand midwest that story would be challenging the statistics is a regression analyses but what they are challenging is the assumptions that go into the regression analyses and one of those critical assumptions i gather is that the reason size or capacity of contractors was not considered as a non discriminatory reason is that size is itself the product of discrimination and i wonder whether the government is obligated to have something of that ends for that assumption correct me if i'm wrong about that being the reason for why some capacity was not considered to be a nondiscriminatory reason i don't think the government is required to have evidence of the booty of that assumption the court would not be writing on a blank slate other courts have said that when you conduct this type of analysis if you can conclude that discrimination with respect to the regression analyses done by the m t a study that identified is the probable reason for them then the case law says it is incumbent upon the somebody challenging us studies to do more than provide conjecture or some modest as to some other reason that could account for i do want to emphasize however that the strong basis in evidence test is not supported solely by the regression analysis aspect of that study or the disparity which is concluded to be statistically significant in terms of avail of availability compared to utilization and of course it is reinforced by the zero goal experiment and zero goal contracts as well as the anecdotal evidence the i want to make sure that i i would have liked to address not the standing issue the court can redone it by as well as i can and make up its own mind as to the rationale of that case and in northern contracting likewise i see my time is up here closer read like to read we have a lot of material that we've covered here and i'll give  show extra time as well but i'd i'd like to have you address as directly as you can the plaintiff's argument about in essence because of the  differences between gaps between prime and sub contractors that the burden of meeting the entire industry standard winds up falling on the smaller non minority or disadvantaged subcontractors in and i think i would largely adopt mr cox's explanation the mismatch concept is in fact the sort of a pointing a finger at a disconnect that doesn't really exist  the overall goal is set as a percentage of total contracting dollars because that's realistically the only way you can do it you can't measure it as a percentage of sub contracting dollars that isn't determined until after a contract has been let in the prime contractor chooses how much it's going to use subcontractors for so as a methodological matter that's the only way it can be done and realistically though when it comes to the implementation for the race conscious measures after all race neutral measures have been applied realistically the way that that's implemented does not impose an undue burden on non d v e subcontractors by virtue of just measuring the total as a percentage of total contract dollars because the individual goals themselves are based upon the a veil ability both in terms of work expertise and area and other work is being performed sept contractors that can do those line items of work that are within the that are within the total prime contract the engineer for the region doesn't estimate of all the values of all the different types of work that are going to be done and then determines based upon local conditions whether any of those line items can be performed by d b ease that are available to do so and if so then that goes into the individual contract cool again after the race neutral measures are applied if i understand the difference between the way i got calculates the project goal and the way the tollway does it so the poway looks at the availability of their individual contract goals and if there are differences there i wish i could elaborate on them but my brief provides i believe a very precise and accurate description of the manner in which i doubt calculates its individual contract pools again subject to the flexibility items that i want to remind the court of which is that those goals can be met through other types of items there is a front end goal modification process that is used on fair occasion and most of the requests for such fun and modifications are granted the case law has emphasized the importance of those types of things the plaintiff has tried to characterize this program repeatedly as being a de facto quota or set aside and nothing could be farther from the truth there is a great deal of attention to making sure that that is exactly what the program does not become and the i want to emphasize again sort of the overall picture which is that narrow tailoring  on the internet for everybody to see so that he can do the type of spreadsheet analysis he'd like to present to the court for those purposes and the answer is first that's not information that i doubt has now it would have to insist that prime contractors gather that information we're talking about tens of thousands of subcontract bids for the contract that it lets each year but then subcontractors don't always bid exactly the same work sometimes they'll submit a single bid for three items of work whereas another sub will provide a subcontractor bid for two items of worth so we're talking about a tedious and exhaustive process of trying to render an apples to apples comparison and then put that on the internet where all the subcontractors are basically going to say my confidential commercial proprietary information is going to be available for examination by my competitors that we have a system that is narrowly tailored and the the problem with the plan is position is they haven't suggested something that actually is more workable and would accommodate the constitutional goals here any better than what's being done now they just don't like what's happening and we are sympathetic to the fact that any program like this does result in some burden on innocent non minorities and white men and contractors that is an aspect of this program that is not to be celebrated but it is part of what the constitution permits and requires when you have a situation in which there is a longstanding history of invidious discrimination and i would suggest that the evidence shows that the burden upon subcontractors in the guardrail and fencing field is not such as to demonstrate over concentration in the years that they point to the supposedly lost contract revenues which keeps on going down as we go through discovery and kind of kick the tires and that the analysis there is about four percent of their total revenues for that year of two recently concluded that there was not overconcentration if the court disagrees however the regulations provide a mechanism for i'd not to seek a waiver of the ets of that approach that it could seek approval for other means unless the court has any other questions i appreciate your indulgence in my going over my allotted time and i think you are taking care of the court to affirm how much time has mr she'll have for your ok take ten so nothing also the law in the circuit which was overlooked actually by the district court in northern contracting we had builders association of british cattle versus county of cook cited in the briefs i don't have the actual from me just posner's opinion explained in that case in the in the defense tried to say that there was evidence of discrimination because they compare participation cook county where they had the d v program with the private industry where they did not have such a program and the court pointed out that this doesn't mean anything because the existence advantage in and in the the the non d the ninety be easer non minority in males competing with them in turn were driven into the private sector and as this court  d in that case the disparity you saw between the public and private sector private sector being the on remediated competing sector was an artifact of the county's own ordinance the exact same principle applies here it's a basic principle of economics so those are two reasons one you need to know why there are zero goals before any inference can possibly be drawn no evidence from  secondly the law in the circuit is it's not valid grounds to make an inference of discrimination with respect to the setting of contract  study and apply that to give of the given line items in the contract multiply that together to find out what this is what the in the into subpoenaed participation we should have on this line of homework from these minorities which sounds good to big problems the first the tollway claims all we account for the fact that the general contractor and tollway contract has to solve perform thirty five percent of the work the uncontested testimony is prime contracts generally perform more than half of the work more than half of the work now no d b we're not even a sub contractor is able to get their work that the general contractor is self perform with the tollway needs to do with that system is account for what the general prime tractor will sell for for which they require thirty five percent no matter what and you would be slashing all their goals by half just by that consideration they claim they consider you are mr jones explain how they do it you can read the testimony explaining how they do it they in fact do not account for self performance for their would result goals in hand the result is the general contractor private contractor that has to find somewhere else to make up he has to get out of the ninety be some contractor share so it tends to concentrate your argument is that it tends to concentrate the d goal into the non self performed parts of the correct prime contractors correct correct so they really have goals or so roughly are actually more than twice as high as they should be typically now i have a similar problem known only on and i does not trucking and supply are not listed typically as line item signed contracts but i doubt it does give credit to the general aren't followed anyway over estimate the be availability and they do that because they're pretending the d b s are available to perform work they cannot perform and do not perform in practice so you're you're really disputing i doubt the contention that they're using the ve availability the portion of d v e availability in their individual contract goals yeah i did initially hear them say a portion of  state little more a little better than they did well because they can you go in your your description is that i doc goes down line by line and if there are two or more v v entities available to perform that line that whole line goes into the contract goal as part of the object right correct and so imagine there are ten line items of seven of those line items have more than two or more d b s available that seventy percent is go they're doing on the budget your honor they're setting their d b participation goals as a matter of dollars that have to go to d v d s when they see a preview go up twenty percent to twenty percent of the total dollars not just twenty percent of the line items but it's based on line