Update on DBE Legal Challenges
- administration478
- May 29
- 2 min read
ACEC continues to closely monitor the pending legal challenges to the federal Disadvantaged Business Enterprise (DBE) program and potential regulatory changes. There were significant developments in the case (Mid-America Milling) this week.
Yesterday, the U.S. DOT and the plaintiff contractors filed a joint motion for a consent order to settle the case:
The draft ruling that they want the judge to sign is here:
Essentially, it says the U.S. DOT agrees that the presumption of economic disadvantage based on race or gender is unconstitutional.
If granted, the court ruling would hold that U.S. DOT and FHWA “may not approve any federal, state or local DOT-funded projects with DBE contract goals where any DBE in that jurisdiction was determined to be eligible based on a race- or sex-based presumption.” If granted, the court’s ruling would essentially impose a nationwide injunction on implementing the DBE program.
However, at this point, this is only a motion from the two parties. Last week, the court allowed several groups of minority contractors to directly intervene in the case and defend the constitutionality of the DBE program. The DOT and plaintiff contractor motion for a final order does not take their position into account. I don’t know whether or how that would change the timing or substantive outcome of the court’s decision on the motion, or any likely appeal of the ruling. I have reached out to a few attorneys who are closely tracking this case for their views.
Regardless, I think this development is significant because it clearly indicates the Administration’s position on the unconstitutionality of the DBE program.
We will continue to provide updates on this and related activity, including any guidance or directives from U.S. DOT.
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