The Trump administration moved Wednesday to dismantle one of the federal government’s largest and longest-standing affirmative action programs, siding with two White-owned contracting businesses that challenged its constitutionality. In a motion filed in the U.S. District Court for the Eastern District of Kentucky, the Justice Department said that a Transportation Department program that has carved out an estimated $37 billion for minority- and women-owned businesses violates the equal protection clause of the Constitution. If a judge approves the proposed settlement, the Disadvantaged Business Enterprise Program (DBE) will be prohibited from awarding contracts based on race and sex, effectively ending its founding mission.

“Over the past five decades, the federal government imposed a policy of race discrimination in the roadbuilding industry,” said Dan Lennington, deputy counsel at the Wisconsin Institute for Law & Liberty, the conservative nonprofit representing the plaintiffs. “Thousands of workers and small businesses have been victimized, and hundreds of billions have been spent, distorting the market and inflating construction costs for the taxpayers. That ends now.”

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The settlement is still subject to challenge by a coalition of businesses that intervened in the case after President Donald Trump took office, arguing that the program is essential to removing entrenched barriers that minorities and women face in the $759 billion contracting sector. First authorized by Congress in 1983, the program serves roughly 49,000 businesses designated as “disadvantaged.”

The case was brought in 2023 by Mid-America Milling and Bagshaw Trucking, both Indiana-based transportation companies whose owners alleged they lost out on jobs when the agency began awarding contracts through the “largest, and perhaps oldest affirmative action program in U.S. history.” The DBE was most recently authorized under the $1.2 trillion Infrastructure Investment and Jobs Act of 2021, as well as through the $105 billion in federal funding for airport and flight safety improvements.

In September, U.S. District Judge Gregory F. Van Tatenhove, a George W. Bush appointee, partially blocked the program on the grounds the plaintiffs were “likely” to succeed on their claims. A permanent decision was pending before the parties agreed to settle.

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The DBE program, which is funded by the U.S. government but administered by states, earmarks at least 10 percent of the federal funding for transportation infrastructure to women- and minority-owned contracting firms.

At the time of the ruling, the Biden administration argued that the DBE was necessary to help remedy the effects of past and ongoing discrimination in government contracting. But since taking office in January, Trump has issued a flurry of executive orders seeking to end any diversity, equity and inclusion (DEI) measures by the government and beyond.

The Justice Department, which a few months ago defended the program under President Joe Biden, wrote in Wednesday’s filing that it “reevaluated” its position in light of the June 2023 Supreme Court decision banning race-conscious college admissions.

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Even before Trump’s return to the White House, a number of federal affirmative action programs had been enjoined by the courts on constitutional grounds, with plaintiffs alleging that the Supreme Court’s college affirmative action decision barred the government from granting benefits based on race.

In September 2023, a Tennessee judge ruled that a Small Business Administration 8(a) program for minority contractors could no longer presume certain ethnic groups were inherently “disadvantaged” — a key requirement to receive set-asides for government contracts. In March 2024, a federal judge in Texas ordered the 55-year-old Minority Business Development Agency to open its doors to all, including White entrepreneurs.

Those court cases were part of a broader wave of resistance to DEI in higher education and the private sector, as well as the idea that certain racial groups are inherently more disadvantaged than others.

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