In August 2009, LDF filed a friend-of-the-court brief defending the constitutionality of the North Carolina’s Minority and Women Business Enterprise (M/WBE) Program for state-funded road construction projects. The North Carolina General Assembly reauthorized its M/WBE Program in 2006, based on its considered policy judgment that historical and ongoing discrimination continues to impede access to contracting opportunities for minority- and women-owned businesses in the state’s construction industry.
The M/WBE Program requires North Carolina to establish non-mandatory, project-specific goals for utilization of minority- and women-owned subcontractors on state road construction projects. But the state can waive these goals for a prime contractor who makes good-faith, albeit unsuccessful, efforts to recruit minority- and women-owned subcontractors. The M/WBE Program was challenged by H.B. Rowe Company. North Carolina rejected H.B. Rowe’s a bid for a road relocation project because it failed even to meet the state’s lenient standard for demonstrating good-faith efforts to recruit minority subcontractors. In response to H.B. Rowe’s challenge, a federal district court upheld the constitutionality of the M/WBE Program. The contractor then appealed to the U.S. Court of Appeals for the Fourth Circuit.
