WILL successfully challenged the “disadvantaged business enterprise” program on behalf of two Indiana businesses, securing an injunction. The Trump Administration now acknowledges the program’s unconstitutionality, potentially leading to major roadbuilding industry reforms.

The News: The Trump Administration admitted today in court filings that the largest and oldest affirmative action program in U.S. history is unconstitutional. Officials from the U.S. Department of Transportation and Department of Justice have agreed to a permanent nationwide injunction. In 1980, the “disadvantaged business enterprise” (DBE) program began as a multi-billion-dollar set-aside program for minority- and women-owned roadbuilding and construction businesses, typically covering 10% of the federal government’s entire budget for transportation spending. The program was most recently funded with $37 billion in tax dollars under the “Biden Infrastructure Bill.”

This move comes on the heels of a successful legal challenge by WILL (Wisconsin Institute for Law & Liberty) who successfully secured an injunction on September 23, 2024, against the illegal program. In 2023, WILL originally sued the Biden Administration on behalf of our two clients, Mid-America Milling Co., LLC (MAMCO) and Bagshaw Trucking Inc., alleging race- and sex-based discrimination. The court filings issued by the Department of Justice today state clearly that this program is unconstitutional, marking nearly a dozen wins against illegal Biden-era programs under WILL’s nationwide Equality Under the Law Project.

The Quotes: WILL Vice President and Deputy Counsel, Dan Lennington, stated, “Over the past five decades, the federal government imposed a policy of race discrimination in the roadbuilding industry. Thousands of workers and small businesses have been victimized, and hundreds of billions have been spent, distorting the market and inflating construction costs for taxpayers. That ends now. Through the bravery of our clients and the leadership of the Trump Administration, equality will be the law of the land.”

WILL Associate Counsel, Cara Tolliver, shared, “Selection systems designed to pick winners and losers on the basis of race are antithetical to human dignity and have led to all sorts of atrocities throughout world history. The government is required to treat all persons as individuals under the law. The Department of Transportation’s decision to end racial discrimination in federal contracting is a monumental victory for the preservation of equality and American values.”

WILL Client, Greg Bagshaw of Bagshaw Trucking Inc., remarked, “Whatever your skin color, background, religion, should have no bearing on the quality of work you can do. Now that the federal government has declared this program unconstitutional, I hope to see an immediate end to the DBE’s discriminatory practices.”

WILL Client, Kramer Koetter of Mid-America Milling Company, commented, “All we want is a level playing field. If my team can put forth the best product or service at a reasonable cost, then we should be rewarded for that. The DBE’s removal returns common-sense back to contracting.”

The Clients: Bagshaw Trucking Inc. is a hauling company headquartered in Memphis, Indiana. Founded in 1982 with two dump trucks and two employees, Bagshaw now boasts one of the largest truck fleets in northern Kentucky and southern Indiana. Bagshaw works on all types of projects, including major interstate construction and restoration, airport projects, bridge repairs, industrial parks, and subdivision developments.

MAMCO is a milling company headquartered in Jeffersonville, Indiana, and part of Hughes Group, Inc., which is a premier heavy highway and bridge preservation company. Founded over 80 years ago, four generations of the Hughes family have guided and expanded the company into a market that stretches over 30 states in any given year.

More About DBE: The federal DBE program is an affirmative action program that gives preference to certain companies based on race and gender. Through this program, the federal government finances the American transportation system, including highway construction, with a series of race and gender quotas they call “goals.”

In practice, the DBE’s “goals” amount to discriminatory barriers, preventing many construction companies, like WILL’s Plaintiffs, from competing for contracts on an equal footing with firms owned by women and certain racial minorities. Because the DBE program violates the Constitution’s promise of equal treatment, it must be permanently dismantled.

The DBE program was most recently reauthorized in November 2021 when President Biden signed the Infrastructure Investment and Jobs Act. Congress mandated that 10% of all new surface transportation funding—over $37 billion—“shall be expended through small business concerns owned and controlled by socially and economically disadvantaged individuals.”

About WILL: WILL is a national legal and policy powerhouse based in the Midwest. The multi-year effort to overturn this program is through WILL’s Equality Under the Law Project, which has targeted various programs within Biden’s Racial Equity Agenda both before, and after, the 2024 Presidential Election. WILL has had recent success under this initiative, successfully ending the “Minority Business Development Agency,” which was designed to help Americans of some races, but not other races.

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