Document DDreq9og0NG3o874kYmeZYOBn

Docket No. 2025-05557, 90 Fed. Reg. 14593 May 5, 2025 Page 7 of 12 command--that is, they can "never" be violated, no matter what kind of compelling interest the government purports to have. Id. That precludes the notion that programs can ever survive if they violate the twin commands, no matter how they fare under strict scrutiny.4 The ACDBE and DBE programs fail to comply with either of the twin commands. Race definitively operates as a negative. Certain races and women are presumptively favored. An individual who is not among them gets treated worse. Grant recipients must discriminate in favor of the preferred races in women in order to meet their overall goals if they cannot reach the racial balancing goal through neutral means. The non-favored races and men also have their race and sex operate as a negative because those characteristics adversely affects their ability to compete for federal dollars. The whole point of the goal-setting framework is to allow access to some races and women "in greater numbers than they otherwise would have been," so "[h]ow else but `negative' can race be described?" Id. at 219. Any suggestion that the programs do not treat race as a negative is "hard to take seriously." Id. at 218. Race and sex also operate as a stereotype. It is embedded in the regulations themselves because certain races and women are presumptively socially disadvantaged. It demeans the "dignity and worth" of individuals to assume that just because of their skin color or sex they are (or are not) disadvantaged. Id. at 220 (quoting Rice v. Cayetano, 528 U.S. 495, 517 (2000)). Individuals falling under these racial umbrellas have nothing in common with each other "but the color of their skin," and the Supreme Court has "time and again forcefully rejected the notion that governmental actors may allocate preference" on this basis. Id. (quoting Shaw v. Reno, 509 U.S. 630, 647 (1993)). Other courts have noticed that the illogic of these sorts of "socially and economically disadvantaged" categories is "absolutely radiant" because it treats "Oprah Winfrey [as] presumptively disadvantaged, while . . . even more disadvantaged Americans are not." Nuziard v. Minority Bus. Dev. Agency, 721 F. Supp. 3d 431, 491-92 (N.D. Tex. 2024). The programs are reliant on stereotypes and will fail. 2. The discriminatory programs lack a "logical end point." The two programs must also have a logical endpoint. Yet they continue to exist with no end in sight, making them impermissible considering SFFA. In addition to satisfying the twin commands and strict scrutiny, race-based programs must have a "'logical end point." SFFA, 600 U.S. at 221 (quoting Grutter, 539 U.S. at 342). The programs have no sunset provision and appear designed to exist in perpetuity. DOT's goals 4 Commentators have read SFFA as articulating new requirements to satisfy in addition to strict scrutiny. See Dan Lennington & Skyler Croy, The Twin Commands: Streamlining Equality Litigation Based on Studentsfor Fair Admissions, 25 Federalist Society L. Rev. 359 n. 80 (2025) (citing Larry J. Pittman, The Supreme Court's Erroneous Equal Protection Clause Analysis: Societal Discrimination, the Harvard College Decision as the New Plessy v. Ferguson-Lite, and the Thirteenth Amendment, 57 Creighton L. Rev. 189, 234 (2024) (noting the twin commands "appear[]" to be a new requirement, separate from strict scrutiny)). OST-2025-1200 Page 00256 Sierra Club v. Dept. of Transp. - 3:25-cv-06221 SC_EVERSPLIT0011937 Docket No. 2025-05557, 90 Fed. Reg. 14593 May 5, 2025 Page 8 of 12 framework suggests that the programs are designed to remain until any statistical disparities between the favored and non-favored races cease. That is unconstitutional. "The problem with [this] approach[] is well established." Id. at 223. "Even if it is not outright racial balancing," it treats individuals "as simply components of racial, religious, sexual or national class," because the racial preferences will only cease to be mandatory "when some rough percentage of various racial groups" is included in the total funding picture. Id. (quoting Miller v. Johnson, 515 U.S. 900, 911 (1995)). Much like Harvard, DOT "thinks about the use of race" and sex in its funding provisions the same way as it did when the programs began decades ago--until all races are represented in its programs to the same degree as their number of minorityowned businesses, discrimination is necessary. Id. at 225. And these programs have been alive and discriminatory for far longer than the 25-year period the Supreme Court gave racial preferences in higher education to run out. See id. at 224 (citing Grutter, 539 U.S. at 343). Adarand, which concerned a preference for "socially disadvantaged" races in DOT funding that had existed for years before it first reached the Supreme Court in 1995, was 30 years ago. If 25 years was too long to discriminate in college admissions, 30 years and counting of discrimination in DOT funding is far, far too long. B. The programs are certain to fail to satisfy strict scrutiny. Both the ACDBE and DBE programs also certainly fail under the demanding strict scrutiny test that ensures that racial classifications are used "only as a last resort." Bartlett v. Strickland, 556 U.S. 1, 21 (2009). Also, the racial classifications "must further compelling government interests." Gratz v. Bollinger, 539 U.S. 244, 270 (2003). Second, the use of race must be "'narrowly tailored'--meaning `necessary'--to achieve that interest." SFFA, 600 U.S. at 207 (quoting Fisher v. Univ. of Tex. at Austin, 570 U.S. 297, 311-12 (2013)). 1. The programs lack a compelling interest Remediating specific, identified instances of past discrimination on the part of the government is one of the few compelling interests that permits state-sanctioned discrimination. See id. To satisfy this interest, the government must make three showings. Vitolo v. Guzman, 999 F.3d 353, 361 (6th Cir. 2021). First, "[i]t cannot rest on a `generalized assertion that there has been past discrimination in an entire industry.' Id. (quoting City ofRichmond v. J.A. Croson Co., 488 U.S. 469, 498 (1989)). "Second, there must be evidence of intentional discrimination in the past." Id. at 361 (emphasis original) (citing Croson, 488 U.S. at 503). "Third, the government must have had a hand in the past discrimination it now seeks to remedy." Id. The ACDBE and DBE programs do not come close to satisfying these criteria. First, DOT requirements only rest on generalized assertions of past discrimination. It requires recipients to set overall goals based on the relative availability of ACDBE and DBE entities that are ready, willing, and able to do the particular job in the relevant market in the presumed absence of discrimination. 49 C.F.R. 23.51(a); 26.45(b). And that goal is determined by looking at the number of available ACDBEs and DBEs and comparing them with the overall market, with the assumption being that any gap is attributable to the effects of discrimination thus necessitating an overall goal, even if it involves a race or sex preference. See id. 23.51(c), (d) (calculating ACDBE overall goals); 26.45(c), (d) (calculating DBE overall goals). OST-2025-1200 Page 00257 Sierra Club v. Dept. of Transp. - 3:25-cv-06221 SC_EVERSPLIT0011938