In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 05-3981

NORTHERN CONTRACTING, INC.,

Plaintiff-Appellant,

v.

STATE OF ILLINOIS, ILLINOIS

DEPARTMENT OF TRANSPORTATION,

KIRK BROWN, in his capacity as the

Illinois Secretary of Transportation, et al.,

Defendants-Appellees.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 00 C 4515—Rebecca R. Pallmeyer, Judge.

____________

ARGUED APRIL 13, 2006—DECIDED JANUARY 8, 2007

____________

Before COFFEY, KANNE, and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge. The question in this case is

whether the Illinois Department of Transportation violated the United States Constitution in administering a

program designed to increase the participation of socially

and economically disadvantaged individuals in Illinois

highway construction subcontracting. After a trial, the

district court concluded that the plaintiff had failed to

prove a constitutional violation. Plaintiff Northern Contracting, Inc. now appeals, arguing that the State’s
2 No. 05-3981

disadvantaged business enterprise program is not narrowly tailored to further a compelling governmental

interest. For the reasons that follow, we affirm the judgment of the district court.

I. BACKGROUND

Northern Contracting, Inc. (“NCI”) is a corporation that

specializes in the construction of guardrails and fences for

highway construction projects in Illinois. Generally,

Illinois highway construction projects are awarded to a

prime contractor on the basis of the lowest qualified bid,

and then the prime contractor completes the project

through the use of subcontractors who perform work such

as the guardrails work that is the specialty of NCI. Most

of NCI’s revenue comes through successful bids as a

subcontractor in state and local highway projects.

In 2000, NCI filed this action seeking declaratory and

injunctive relief against the State of Illinois, the Illinois

Department of Transportation (“IDOT”), the United States

Department of Transportation (“USDOT”), the Secretary

of IDOT, and IDOT’s Bureau Chief of the Bureau of Small

Business Enterprises, under 42 U.S.C. §§ 1981, 1983, and

2000(d), claiming that IDOT’s disadvantaged business

enterprise (“DBE”) program is unconstitutional. IDOT is

the state agency responsible for construction and maintenance of all transportation infrastructure in Illinois,

ranging from highways to airports. It receives approximately one third of its funding from the federal government.

IDOT’s DBE program is an outgrowth of federal policy.

Federal law establishes a national goal that ten percent

of federal highway funds are to be spent with DBEs. See

Surface Transportation Assistance Act of 1982, Pub. L. No.

97-424, § 105(f), 96 Stat. 2097, 2100 (1983); see also
No. 05-3981 3

Transportation Equity Act for the 21st Century (“TEA21”), Pub. L. No. 105-178, § 1101(b)(1), 112 Stat. 107, 113

(1998). USDOT’s implementing regulations for TEA-21

require all recipients of federal highway funds (such as

IDOT) to have an approved DBE program. See 49 C.F.R.

§ 26.21(a).

To qualify as a DBE, a company must be at least 51%

controlled by “individuals who are both socially and

economically disadvantaged.” See 49 C.F.R. § 26.5. “Socially disadvantaged individuals are those who have

been subjected to racial or ethnic prejudice or cultural

bias because of their identity as a member of a group

without regard to their individual qualities.” 15 U.S.C.

§ 637(a)(5). “Economically disadvantaged individuals are

those socially disadvantaged individuals whose ability

to compete in the free enterprise system has been impaired due to diminished capital and credit opportunities

as compared to others in the same business area who are

not socially disadvantaged.” 15 U.S.C. § 637(a)(6)(A). A

DBE owner’s net worth cannot exceed $750,000. 49 C.F.R.

§ 26.67(a)(2)(i). The regulations require recipients to

presume, rebuttably, that women and members of racial

minority groups are socially and economically disadvantaged if an individual belonging to one of these groups

attests to these qualifications in a signed and notarized

document. See 49 C.F.R. § 26.67(a)(1). The regulations do

not foreclose the classification to members of any racial

group or gender. See id. A company with gross revenue

exceeding $16.6 million cannot qualify as a DBE. See 49

C.F.R. § 26.65(b). NCI is not a DBE. It is not owned by

women or members of any racial minority group.

A recipient of USDOT funds, such as IDOT, must take

several steps in order to assure compliance with federal

law pertaining to its required DBE program. First, the

recipient must determine at the local level the figure that

would constitute an appropriate DBE involvement goal,
4 No. 05-3981

based on the relative availability of DBEs. 49 C.F.R.

§ 26.45(b). The regulations detail the various methods a

recipient may use to calculate DBE availability, but

under any method selected, a recipient must begin by

calculating a “base figure” for the relative availability of

DBEs, and then must examine evidence in the local area

to determine whether any adjustments to the base figure

are needed. 49 C.F.R. §§ 26.45(c), 26.45(d). These adjustments lead to the final local goal. See id.

After a local goal is established, the recipient must

submit its DBE plan to USDOT for approval, with explanations as to how it arrived at the goal. 49 C.F.R. § 26.45(f).

USDOT is not allowed to withhold funds if a recipient

later fails to meet its goal unless there is a demonstration of bad faith on the part of the recipient. 49 C.F.R.

§ 26.47(a).

At the implementation stage, a recipient is required to

maximize the portion of its goal that can feasibly be

achieved through race-neutral means. 49 C.F.R. § 26.51(a).

The regulations provide a non-exhaustive list of raceneutral means through which a recipient can maximize

DBE participation, including such steps as providing

bonding assistance to all subcontractors, sponsoring

informational programs, and ensuring the widest possible

distribution of the recipient’s DBE directory. See 49 C.F.R.

§ 26.51(b).

IDOT typically adopts a new DBE plan each year. In

preparing the Fiscal Year 2005 plan, IDOT retained

National Economic Research Associates, Inc. (“NERA”), a

consulting firm, to conduct a “custom census” in order to

determine DBE availability. The NERA custom census

was ultimately conducted by Dr. Jon Wainwright, an

economist. Wainwright’s analysis involved first identifying the relevant geographic market (Illinois) and the

relevant product market (transportation infrastructure
No. 05-3981 5

1 The Northeast Illinois Regional Commuter Railroad Corporation is commonly known as “Metra.” It is a state-created entity

that develops and administers public railway transportation in

and around the city of Chicago.

construction). Next, Wainwright surveyed Dun & Bradstreet’s Marketplace, which is a comprehensive database

of American businesses that identifies which businesses

are minority or woman-owned. Wainwright supplemented this survey with IDOT’s list of DBEs in Illinois.

After arriving at this beginning list of DBEs, Wainwright

corrected for errors in the data by surveying a random

sample from the group; this survey led him to conclude

that 22.8% of the firms listed as minority or woman-owned

were actually owned by white men. He then surveyed

all of the firms listed as not being minority or womanowned; this survey led him to conclude that 14.5% were

actually owned by minorities or women. In light of these

two surveys, Wainwright adjusted his calculation of

DBE availability and arrived at an overall relative availability of 22.77%. Wainwright then ran a regression

analysis of Census Bureau data on earnings and business

formation, and concluded that in the absence of discrimination, relative DBE availability would be 27.5%.

In arriving at its final goal for Fiscal Year 2005, along

with the NERA report prepared by Wainwright, IDOT

considered: (1) a study NERA conducted for Metra1

; (2)

expert reports used in Builders Association of Greater

Chicago v. Chicago, 298 F. Supp. 2d 725 (N.D. Ill. 2003);

(3) anecdotal information gathered at public hearings; (4)

data on DBE involvement in construction projects in

markets without DBE goals; and (5) IDOT’s own data on

the past use of DBEs. Included in IDOT’s own data was a

“zero goal” experiment conducted in 2002 and 2003, in

which IDOT did not use DBE goals on 5% of its contracts.
6 No. 05-3981

On these contracts, DBEs ended up receiving approximately 1.5% of the total value of the contracts. Also of

note, IDOT examined the system utilized by the Illinois

State Toll Highway Authority, which does not receive

federal funding; though the Tollway has a DBE goal of

15%, this goal is completely voluntary—the average DBE

usage rate in 2002 and 2003 was 1.6%. On the basis of

all of this data, IDOT adopted 22.77% as its Fiscal Year

2005 DBE goal.

Though 22.77% was IDOT’s overall goal, it determines

individually whether each project should carry a DBE

goal, based on the type of project and the availability of

DBEs to perform the subcontracting that will be necessary. After the prime contractor is selected (on the basis of

the lowest qualified bid), the prime contractor has seven

days to report its DBE utilization plan to IDOT. IDOT

awards waivers and reductions of the goal if a contractor

later demonstrates that it made a good-faith effort but

was incapable of meeting the goal.

At the outset of this litigation, NCI’s complaint alleged

that (1) TEA-21 and USDOT’s regulations were outside of

the scope of Congressional power; (2) these federal provisions violated the Fifth Amendment’s guarantee of equal

protection; (3) the Illinois statute implementing the federal DBE requirement violated 42 U.S.C. §§ 1981, 1983,

2000(d) and the Fourteenth Amendment’s Equal Protection Clause. NCI requested declaratary and injunctive

relief.

After discovery closed in 2003, all of the parties to this

suit filed cross-motions for summary judgment. The

district court granted only USDOT’s motion for summary

judgment, concluding that the federal government had

demonstrated a compelling interest (ending effects of

current and past discrimination in highway contracting

market) and that TEA-21 and its implementing regula-
No. 05-3981 7

2 NCI did not appeal the grant of summary judgment for

USDOT.

tions were sufficiently narrowly tailored. The court

concluded that a trial was necessary to determine

whether IDOT’s program was narrowly tailored.

At the bench trial, the State introduced the testimony

of Wainwright, the testimony of owners of DBEs, and

the testimony of an IDOT employee (Colette Holt) who

explained the Fiscal Year 2005 DBE plan. NCI introduced

the testimony of non-DBE prime contractors. The parties

stipulated that: (1) the percentage of IDOT’s total contracting expenditures that went to DBEs was 15.19% in

2003 and 18.05% in 2004; (2) the percentage of IDOT’s

contracting expenditures received by DBEs on contracts

with DBE goals was 19% in 2003 and 17% in 2004; and (3)

the percentage of contracting expenditures that went to

DBEs on contracts with no DBE goals was 2% in 2003

and in 2004.

At the conclusion of the trial, Judge Pallmeyer found

that IDOT’s Fiscal Year 2005 DBE program was narrowly tailored to the compelling interest identified by

the federal government—remedying the effects of racial

and gender discrimination in the highway construction

market—and granted judgment for the defendants. NCI

now appeals from that judgment.2

II. ANALYSIS

The only question that we must answer in this appeal is

whether NCI can prove that IDOT’s DBE program does

not pass constitutional muster. Since the program involves racial classifications, we must employ strict scru-
8 No. 05-3981

3 As we have previously discussed, the Supreme Court has not

made clear whether a more permissive standard applies to

programs, such as this one, which also involve gender classifications, but IDOT does not argue for a more permissive standard

for its gender-based initiatives and therefore we will apply

strict scrutiny to the entire program. See Builders Ass’n of

Greater Chicago v. County of Cook, 256 F.3d 642, 644-45 (7th Cir.

2001) (“Another unresolved issue is whether a different, and

specifically a more permissive, standard is applicable to preferential treatment on the basis of sex rather than race or

ethnicity . . . . But since here, as in Milwaukee County Pavers, the

County doesn’t argue for a different standard for the minority

and women’s set-aside programs, the women’s program must

clear the same four hurdles as the minority program.”) (citing

Milwaukee County Pavers Ass’n v. Fiedler, 922 F.2d 419, 422

(7th Cir. 1991)).

tiny in making this determination.3 See Adarand Constructors v. Pena, 515 U.S. 200, 235 (1995). In order to

survive strict scrutiny, a government program that uses

racial classifications must be narrowly tailored to serve a

compelling governmental interest. See id. Following a

bench trial, we review the district court’s legal conclusion

that IDOT’s program is constitutional de novo and its

factual determinations for clear error. Bricklayers Local 21

of Ill. Apprenticeship & Training Program v. Banner

Restoration, Inc., 385 F.3d 761, 766 (7th Cir. 2004);

Riggins v. Walter, 279 F.3d 422, 428 (7th Cir. 1995).

A. Compelling Interest

NCI appears to have forfeited the argument that IDOT’s

DBE program does not serve a compelling governmental

interest, focusing instead on the narrow tailoring prong

of the test. Nevertheless, we think it prudent to briefly

address the compelling interest aspect of the strict scrutiny analysis and we agree with the district court that
No. 05-3981 9

4 IDOT also argues that it has independently demonstrated

that it has a compelling interest in “not passively channeling

federal dollars into an industry still suffering the ill effects of

discrimination.” We need not determine in this case whether

this independent interest can survive constitutional scrutiny.

IDOT has satisfied its burden here. As a state entity

implementing a congressionally mandated program, IDOT

relies primarily on the federal government’s compelling

interest in remedying the effects of past discrimination

in the national construction market.4

 In the post-Adarand

era, two other circuits have considered the question of

whether a state may properly rely on the federal government’s compelling interest in implementing a local

DBE plan for highway construction contracting, and both

have concluded that a state may properly do so. See

Western States Paving Co., Inc. v. Washington State Dep’t

of Transp., 407 F.3d 983, 997 (9th Cir. 2005) (“When

Congress enacted TEA-21, it identified a compelling

nationwide interest in remedying discrimination in the

transportation contracting industry. Even if such discrimination does not exist in Washington, the State’s

implementation of TEA-21 nevertheless rests upon the

compelling interest identified by Congress.”), cert. denied,

126 S. Ct. 1332 (Feb. 21, 2006); Sherbrooke Turf, Inc. v.

Minn. Dep’t of Trans., 345 F.3d 964, 970 (8th Cir. 2003)

(“When the program is federal, the inquiry is (at least

usually) national in scope. If Congress or the federal

agency acted for a proper purpose and with a strong

basis in the evidence, the program has the requisite

compelling government interest nationwide, even if the

evidence did not come from or apply to every State or

locale in the Nation.”), cert. denied, 541 U.S. 1041 (2004).

As we noted above, NCI has not articulated any reason for us to break ranks with our sister circuits. Indeed,

prior to the Supreme Court’s decision in Adarand, we
10 No. 05-3981

considered the question of whether the federal government’s interest in remedying discrimination in highway

construction contracting provided sufficient justification

for the state to engage in a federally mandated DBE

program, and we concluded that it did. See Milwaukee

County Pavers Ass’n v. Fielder, 922 F.2d 419, 423 (7th Cir.

1991) (“Insofar as the state is merely complying with

federal law it is acting as the agent of the federal government and is no more subject to being enjoined on equal

protection grounds than the federal civil servants who

drafted the regulations . . . . If the state does exactly

what the statute expects it to do, and the statute is

conceded for purposes of the litigation to be constitutional,

we do not see how the state can be thought to have

violated the Constitution.”). As in Milwaukee County

Pavers, NCI has not challenged the constitutionality of

the applicable federal statutes and regulations on appeal. And as the more recent decisions of the Eighth and

Ninth Circuits make clear, our compelling interest analysis in this context should not be altered by Adarand.

Therefore, the question of compelling interest must be

decided in favor of IDOT. The only question is whether

IDOT’s program is narrowly tailored to achieving this

compelling interest.

B. Narrow Tailoring

We are convinced that IDOT has satisfied its burden of

demonstrating that its program is narrowly tailored. Our

holding in Milwaukee County Pavers that a state is

insulated from this sort of constitutional attack, absent a

showing that the state exceeded its federal authority,

remains applicable. See Milwaukee County Pavers, 922

F.2d at 424-25; Tennessee Asphalt Co. v. Farris, 942 F.2d

969, 975 (6th Cir. 1991) (citing Milwaukee County Pavers

for the same point); see also Western States Paving, 407
No. 05-3981 11

5 The Ninth Circuit in Western States Paving concluded that a

state is still susceptible to an as-applied challenge to the narrow tailoring of its DBE program. See Western States Paving, 407

F.3d at 997-98. The court concluded that our decision in Milwaukee County Pavers did not address the situation of an as-applied

challenged to such a program. See id. at 998 n.9. But as Judge

McKay’s separate opinion correctly observed, the majority in

Western States Paving misread our decision in Milwaukee County

Pavers. See id. at 1003-04. Relatedly, the Eighth Circuit, in

Sherbrooke, concluded that this portion of our decision in

Milwaukee Pavers was compromised by the fact that the challenge in our prior decision occurred “[u]nder the prior law—when

the ten percent federal set-aside was more mandatory.”

Sherbrooke, 345 F.3d at 970. We are unconvinced by this

reasoning—all recipients are still required to have compliant

DBE programs in order to be eligible for federal transportation

funds, however federal law makes more clear now that compliance could be achieved even with no DBE utilization if that

were the result of a good faith use of the process.

F.3d at 1003-04 (McKay, J., concurring in part and dissenting in part) (noting the continuing applicability of

Milwaukee County Pavers and concluding that the plaintiffs should be limited to challenging the state’s adherence to its grant of federal authority).5

 In Adarand, the

Supreme Court did not seize the opportunity to conclude that our decision in Milwaukee County Pavers,

along with the Sixth Circuit’s in Tennessee Asphalt, was

incorrect. The Court only decided that federal programs

involving racial classifications must also be subjected to

strict scrutiny. See Adarand, 515 U.S. at 235. It did not

invalidate our conclusion that a challenge to a state’s

application of a federally mandated program must be

limited to the question of whether the state exceeded its

authority. Here, because NCI has not challenged on appeal the district court’s grant of summary judgment for

the federal government, it has forfeited the opportunity

to challenge the federal regulations.
12 No. 05-3981

6 256 F.3d 642 (7th Cir. 2001).

We note that much of NCI’s argument regarding narrow

tailoring is based on our decision in Builders Association

of Greater Chicago v. County of Cook,

6

 but this reliance

is misplaced. Even before Adarand expanded the applicability of strict scrutiny to federal programs, state and

local governments that independently created affirmative

action programs were subject to strict scrutiny, and we

observed in Builders Association that the State was

required to demonstrate that its program was narrowly

tailored to remedy the specific past discrimination perpetrated by the State. See Builders Ass’n, 256 F.3d at 646.

But as discussed above, IDOT here is acting as an instrument of federal policy and NCI cannot collaterally attack

the federal regulations through a challenge to IDOT’s

program. See Milwaukee County Pavers, 922 F.2d at 424

(“Insofar as the state is merely doing what the statute

and regulations envisage and permit, the attack on the

state is an impermissible collateral attack on the statute

and regulations.”); see also Kelley v. Bd. of Trs., 35 F.3d

265, 272 (7th Cir. 1994) (citing Milwaukee County Pavers

and concluding that plaintiffs’ attempted challenge to

University’s attempt to comply with requirements of Title

IX was impermissible “collateral attack on the statute”).

Thus, the remainder of our inquiry is limited to the

question of whether IDOT exceeded its grant of authority

under federal law. NCI presses three arguments in this

respect. First, NCI argues that IDOT violated 49 C.F.R.

§ 26.45(c) by improperly calculating the relative availability of DBEs in Illinois. Second, NCI argues that IDOT

failed to properly adjust its base figure based on local

market conditions. Third, NCI argues that IDOT violated 49 C.F.R. § 26.51 by failing to meet the maximum

feasible portion of its overall goal through race-neutral

means. All three of NCI’s arguments fail.
No. 05-3981 13

49 C.F.R. § 26.45(c) describes the appropriate method

for a recipient’s calculation of the local base figure—the

first step in the goal-setting process. The regulation

gives several examples of appropriate methodology, but

states explicitly in the paragraph preceding the list

that: “[t]hese examples are not intended as an exhaustive

list. Other methods or combinations of methods to determine a base figure may be used, subject to approval by

the concerned operating administration.” Id. Indeed, the

fifth item in the list is entitled “Alternative Methods” and

states: “You may use other methods to determine a base

figure for your overall goal. Any methodology you choose

must be based on demonstrable evidence of local market

conditions and be designed to ultimately attain a goal

that is rationally related to the relative availability of

DBEs in your market.” 49 C.F.R. § 26.45(c)(5). The other

four methods in the list are (1) “Use DBE Directories and

Census Bureau Data”; (2) “Use a bidders list”; (3) “Use

data from a disparity study”; and (4) “Use the goal of

another DOT recipient.” 49 C.F.R. § 26.45(c)(1)-(4). The

regulations provide detailed descriptions of each of these

four examples that are not relevant here.

The regulations make clear that “relative availability”

means “the availability of ready, willing and able DBEs

relative to all businesses ready, willing and able to participate on your DOT-assisted contracts.” 49 C.F.R.

§ 26.45(b). The gravamen of NCI’s first noncompliance

argument is that IDOT miscalculated the number of DBEs

that were “ready, willing, and able” by utilizing the

NERA custom census instead of a simple count of the

number of registered and prequalified DBEs under Illinois

Law. But as the district court correctly observed, NCI

has pointed to nothing in the federal regulations indicating that a recipient must so narrowly define the scope of

ready, willing, and available firms. The NERA custom

census reflects an attempt by IDOT to arrive at more
14 No. 05-3981

7 The method that NCI argues for here is essentially the “bidders

list” method that the regulations list as one possible method of

calculating relative availability. See 49 C.F.R. § 26.45(c)(2).

accurate numbers than would be possible through use of

just the list. Indeed, the method used here by NERA is the

very methodology that was used by the Minnesota Department of Transportation in the unsuccessful challenge to its program in Sherbrooke. See Sherbrooke, 345

F.3d at 973. We agree with the district court that the

remedial nature of the federal scheme militates in favor

of a method of DBE availability calculation that casts a

broader net. This conclusion is bolstered by guidance

offered by USDOT on its website, where it suggests that

recipients might supplement their DBE directories, for

goal-setting purposes, with list of parties “attending [DBE

certification] outreach sessions.” See Tips for Goal-Setting

in the Disadvantaged Business Enterprise (DBE) Program,

available at http://osdbu.dot.gov/?TabId=133. Moreover, it

seems illogical that the regulations would refer to five

different methods of calculating the relative availability

of DBEs if any method other than strict reference to the

list of registered and prequalified DBEs would be considered inappropriate.7

 We are unpersuaded that NCI

has demonstrated any noncompliance with 49 C.F.R.

§ 26.45(b).

NCI’s second objection, that IDOT failed to properly

adjust its goal based on local market conditions, also fails.

As IDOT correctly responds in its brief, 49 C.F.R.

§ 26.45(d) does not require any adjustments to the base

figure after the initial calculation, but simply provides

recipients with authority to make such adjustments if

necessary. NCI’s argument is that IDOT essentially

abused its discretion under this regulation by failing to

separate prime contractor availability from subcon-
No. 05-3981 15

tractor availability. However, NCI has not identified any

aspect of the regulations that requires such separation.

Indeed, as the district court observed, the regulations

require the local goal to be focused on overall DBE participation in the recipient’s DOT-assisted contracts. See 49

C.F.R. § 26.45(a)(1). It would make little sense to separate

prime contractor and subcontractor availability as suggested by NCI when DBEs will also compete for prime

contracts and any success will be reflected in the recipient’s calculation of success in meeting the overall goal.

Finally, we find meritless NCI’s argument that IDOT

violated 49 C.F.R. § 26.51 by failing to meet the maximum

feasible portion of its overall goal through race-neutral

means of facilitating DBE participation. Under 49 C.F.R.

§ 26.51:

Race-neutral DBE participation includes any time

a DBE wins a prime contract through customary

competitive procurement procedures, is awarded a

subcontract on a prime contract that does not

carry a DBE goal, or even if there is a DBE goal,

wins a subcontract from a prime contractor that

did not consider its DBE status in making the

award (e.g., a prime contractor that uses a strict

low bid system to award subcontracts).

NCI argues that IDOT’s calculation of past levels of raceneutral DBE participation erred by failing to include a

calculation of the instances when DBEs winning subcontracts from prime contractors on goal projects where the

prime contractor did not consider DBE status. IDOT

calculated the level of past race-neutral DBE participation by assessing the rate of DBEs winning contracts on

no-goal projects. Though the regulations indicate that

where DBEs win subcontracts on goal projects strictly

through low bid this can be counted as race-neutral

participation, NCI points to no aspect of the regulations
16 No. 05-3981

requiring IDOT to engage in a search for this information for the purpose of calculating past levels of raceneutral DBE participation. As IDOT explains, this evidence was not before it at the time that the Fiscal Year

2005 plan was adopted and NCI has not produced any

evidence proving that IDOT’s past participation figure

is invalid. NCI accurately points out that, under 49

C.F.R. § 26.51(f)(1), IDOT was required to implement its

program without setting contract goals if, under IDOT’s

approved projection, it estimated that it was able to meet

its goal strictly through race-neutral means. But IDOT’s

projection yielded no such conclusion.

In any case, the record makes clear that IDOT uses

nearly all of the methods described in § 26.51(b) to maximize the portion of the goal that will be achieved through

race-neutral means. Among other methods, IDOT has

sponsored different types of informational sessions,

provided technical and financial training to DBEs and

other small businesses, and has initiated a bonding and

financing assistance program. NCI has failed to demonstrated that IDOT has not maximized the portion of its

goal that will be met through race-neutral means. This

failure reflects NCI’s broader inability to demonstrate

that IDOT’s DBE program is in violation of the Constitution.

III. CONCLUSION

The judgment of the district court is AFFIRMED.
No. 05-3981 17

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—1-8-07