vice president and general manager of western states paving submitted three did score asphalt and paving work on construction projects on each occasion those builds were rejected those quotes were rejected on behalf amendment on the t v and we also have the as applied in the if you could get to which you think is your strongest argument first there's between the two it would be very useful i think that the focus of this case and graphs the strongest argument is the as a client i don't i don't want to indicate that i don't think that the  facial issue and the underlying requirements of congress are even sure you really understand them i think i think what we need to do is look at what the regulations states and what they  require the regulations adopted require that there be a national defense present aspirational goal somehow the department of transportation believes the word shall as an act and by congress now means aspirational rather than carrots and they require that each in response to add around and to ensure in a narrow tailoring the federal government asks that each recipient of funds under fifty twenty one analyze the local market and ensure that the conditions are met to determine if there are indeed is indeed discrimination and the regulations authorized but do not require the use of race conscious efforts and methods and i ask and very with me well i read a couple of things that support that if you read the government's brief the united states brief on page twenty four a state legislator being legislation mandating the use of waste conscious contracting preference nationwide even in regions w discrimination does not persist would raise more difficult questions i paged twenty five a state regulations are designed to assist states and other recipients in determining when  race conscious measures are manifestly necessary to overcome the effects of identified discrimination in a particular jurisdiction on page twenty eight they indicate that deity's regulations meet this standard because they are designed to assist states in ensuring that race conscious remedies are limited to only and only is that callous ised those jurisdictions where discrimination or its effects are a profit and only as a last resort when race neutral relief is insufficient to make a similar statement on page twenty nine as i understand it the state of washington as distinct from the federal government appears to concede that there is no evidence in the record of past discrimination with respect  protective group or do in my reading that correctly district you are and the united states government also seems to under consent and they can see that when the legislation itself made findings generally of the discrimination they are presumptively members of the socially disadvantaged in economically disadvantaged categories but that's the underlying legislation when you read the congressional reports and when you read the government's brief that night not make a finding that each and every location in the united states had discrimination problems the discrimination findings were in various locations in varying degrees varying amounts and i think in the government's brief there were discussions of atlanta new orleans d c denver and problems i believe in north dakota but i don't believe that there was ever a finding in washington predecessors to teach twenty one were viewed as requiring a ten percent set aside in the contracts and it was across the board the regulations changed as a result of adarand and the government's belief that that ten percent across the board one size fit all was not appropriate and would not survive strict scrutiny and the government then put the burden in narrowing tailoring that the narrow tailoring that the had had to analyze the local market conditions and as i read from the government's brief they have to determine that discrimination it's lingering effects must exist in the dirt the local market before  race conscious remedies so i think there's an achilles raising the question of burden here who has the burden at this point if presumptively the national legislation is valid and make merely because a a legislature or jurisdiction finds discrimination in one location they can't use that to justify race not race based remedies in another location and we also have the language that says that congress hates with a broader brush but we also have adarand that says state local and federal governments are held to the same standards when it comes to equal protection so how do we drive the broader brush approach with united states government the broader brush doesn't eliminate the need to inquire of whether race and sex based differences occurred in the jurisdiction go back and read it again then when you're ever discriminated against in washington as for i'm not arguing you know i'm not arguing that they have to go that are going they don't presently discriminate against me arguing that there is no evidence that there is now or there has are not aware of that that has occurred in the highway construction industry by the state of washington they are also not sure of any discrimination that occurred insurance land for want it let me the evidence on the improved comfort came from the b b c report and the expert's report i think her name was called but if i'm a big back up an ass answer of one of your questions or clarify a little bit more in terms of the as a percentage of the contractors are available in that area then you make adjustments and it is an aspirational goal not enforceable not mandatory no punishment comes to the states or any recipient for failing to meet it and then it's the question of how do you then enforce it and how you how you reach that is true race neutral means unless or until you have evidence of discrimination or the past effects but what i want to focus on in this case is what the state did race neutral is the fine by the regulations as methods race and gender neutral are methods that benefit all small business what i want to focus on is how the state enforces this and what the type of the nature of the race conscious efforts they use it is a mandatory condition of the board of the contract when you look at the documents that are presented the documents indicate that if you don't meet the d v e goal your view it will be considered as non responsive now there are there are in the regulations there is the ability that if you don't meet the d b e requirement you may rely on good faith effort the evidence shows that in the history of the d d e program in washington only one contractor was able contract with out through good faith efforts and part of the reason is how onerous it is if you look at the states definition of good faith efforts it's that the bitter must show that it took all necessary and reasonable s to achieve the goal and by the scope intensity appropriateness to the objective the better could reasonably be expected to obtain sufficient maybe even his patients the federal regulations forty nine c f r twenty six fifty three are even more onerous if they were to the apply they have to take all reasonable and available means to solicit they have to follow up the solicitation to make sure that they really received it and might be interested they have to break out work even if the contractor can do it and respond to appellant's claims that t twenty one and the department of transportation's regulations are faithfully unconstitutional afterwords detroit and assistant attorney general from the state of scrutiny because it had a strong basis in evidence to support its conclusion that remedial work leave was necessary as outlined in our brief congress as part discriminatory barriers past and present that impede the ability of disadvantaged business enterprise this throughout the nation to compete equally highway construction dollars the legislat not specifically to the state of washington what the record does include is statistical study after statistical study from all regions of the country that demonstrate the basis for t twenty one the answer to that is generally yes i wouldn't use the saying language is on or about requiring they're just i would say that they were designed the regulations to ensure that and what they are is a roadmap that the state had not made the appropriate showing that would not implicate the facial challenge at all but it would implicate the as upload a challenge to meet that burden at the outset the federal program does not require the state to take any action no less action that is unconstitutional if merely makes available federal funds under certain discrimination and lingering effects the congress found to exist nationwide existed in the local jurisdiction and then only as a matter of last resort when raisman three measures are inadequate if the court has no further to show a compelling interest to the extent that this court thinks the regulation delegates some of the narrow tailoring component to the states i think we have a burden of production it's pretty clear that all the cases make clear that the opponent has the ultimate burden of proof of showing that the program has applied is not merely tailored so that's my frame of analysis here and with respect to whether the state met its burden of production we had before the district court some of the very best evidence as to the lingering effects of discrimination in the washer marketplace and that is we have a proven capacity of our d v d community to attain about eighteen percent of the  or the lingering effects of press pass discrimination what we what we've shown you to get to the narrow point of whether or not there is discrimination each d v e owner is required to certify that he or she has been the victim of discrimination currently or the past effects when they certify that they're eligible to be a t v that's that's what the regulation requires they swear to that under penalty of perjury every d v d is done that we have eight hundred and some affidavits to that effect are they required to make out a showing of specific events in the past where they were directly discriminated against i don't believe so your honor i think it requires that they attest that they've been discriminated against in this thousand which was the focus of much of this case we had about eight hundred women each of them has filed local ration under penalty of perjury that he has been discriminated against but that person has fans screaming it against discrimination against employees the washington state department of transportation of the identify of all completes that alleged discrimination occurred against is evidence of discrimination in this record yes sufficient to meet the the the t standard regulations and joke yes i mean and the way that we follow the rule that tells us some of the sorts of calculations we need to do the data we need to analyze to determine whether or not there are ongoing effects of discrimination there is not only your seem to be focusing on the ongoing effects of discrimination you but i don't think the real question was directed to evidence of discrimination well past discriminately believe what i just described that the vast discrepancy between goals and no or no i don't either or it's either my next question then is discrimination as to which you have a there's no claim that we've done anything contrary to the federal regulation seems to me one of the keys in this case is how you go about selecting the is there a formula in the national legislation or the evidence of getting really discrimination it is our position that to that with respect to that rule and all the rules that if if you find that the federal regulation is merely tailoring and if you find th think you must on this record that the state complied with the regulation that we have that narrowly tailored program as applied in this instance there's no light between what the state did in this case what the federal regulations require so it's difficult for us to understand of the state or federal d d e programs the county and the city were granted summary judgment dismissing the monetary damage claims against them on the basis that there was no evidence that the city or county engaged in an intentional discrimination simply pointed to in terms of evidence of discrimination or lack of it because if you look at this the interactive tours that follow those in iraq the tours asked specifically to identify all incidents of discrimination which occurred and then listed the particular category of protect class among african americans american indians asian americans and the answer was the same to all of not they were not aware of any and if you arc to ten and follow what i ask you to remember is that the law allows us lousiest the state in the federal government to remedy discrimination it does not allow them to remedy disparit and what evidence the state relies on is just that if you were to read the transcript of the argument that a court heard before judge layton and that's the supplemental exhibit of the which aside in my brief says that we have to resist the that the tendency to substitute speculation about disparity or speculation about correlation with proof of discrimination and proof of discrimination according to cases comes from statistics only when you eliminate all of the nondiscriminatory because it's one of which may be societal discrimination which the state and government federal government cannot legislate against according to the case law what we have is a part program that the federal government admits in this footnote to the adarand supreme court decision  could not implement in the state of washington alone as a federal program because the this is the studies that were done the benchmark studies says they can only use it in about eight states that's listed in my brief it is clear that under this evidence the state alone could not implement this program because it has no evidence of discrimination or its lingering effects so how then can they can they implemented together when they couldn't do it alone let me ask you were sort of procedural question of your appearance summary judgment are you asserting that there are questions of fact which would require a trial there no fact issues that that's used to us that would preclude entering summary judgment in our favor i have about a minute and i want to take one one minute in fact to talk about the  issue about congress and the compelling interest the courts have had to decide what the compelling interest is because congress has never given us the benefit of telling us what their interest is there's no preamble there's no findings of fact there's nothing they've handed the ball out that others there's a committee report where they say we're going to leave it to the courts to determine if there's a compelling interest and what it is so little surprised the question is not just a compelling interest there has to be a strong basis in evidence they have to identify demo five the type of discrimination and the amount of discrimination with particularity to frame the remedy one of the faults i think in congress and one of the problems with congress is never studied where it's been how can you know where you're going to go if you don't know where you've been this program has been in effect sense eighty one or eighty two using the same language but more strongly applied not less than ten percent shall be allocated to d v d s they don't know how successful it was it's now aspirational goals but if you don't know if that money has been well spent and with you have it succeeded anything how do you know what the need is for the the the program in the future or think you can answer your time has expired the case just argued will be submitted for a decision and we will hear arguments in thomas