NERA's Role in Sherbrooke Turf, Inc. v. Minnesota Department of Transportation and Gross Seed Co. v. Nebraska Department of Roads 345 F.3d 964 (8th Cir. 2003)

The Situation

These consolidated cases resulted from a series of challenges to the constitutionality of the US Department of Transportation's (USDOT) Disadvantaged Business Enterprise (DBE) program, as implemented by the Minnesota Department of Transportation (MnDOT) and the Nebraska Department of Roads (NDOR). The purpose of the DBE program is to promote the inclusion of disadvantaged small businesses in transportation contracts and subcontracts funded with federal monies. Shortly after USDOT issued revised DBE regulations in 1999, MnDOT commissioned NERA to perform a statistical study of DBE availability in the market for MnDOT transportation contracts, to comply with the new federal regulations.

NERA's Role

Two non-minority-owned firms that provide landscaping services to prime contractors on federally assisted highway projects challenged the constitutionality of the DBE program as adopted in Minnesota and Nebraska. Minnesota retained NERA Senior Vice President Dr. Jon Wainwright as its expert, and the US Justice Department brought in Professor David Blanchflower of Dartmouth College and Professor Ray Marshall of the University of Texas at Austin to provide additional expert testimony in both cases.

The Result

The court was ultimately persuaded by NERA's testimony in both cases, upholding the DBE programs in Minnesota and Nebraska. In reviewing these decisions, the court of appeals agreed not only that Congress met its constitutional burdens by developing strong evidence of discrimination and narrowly tailoring the overall remedy, but that the MnDOT and NDOR programs are constitutional as applied. On 17 May 2004 the US Supreme Court refused to grant cert, thus allowing the favorable circuit court rulings to stand.