In 2023, two companies filed suit in the U.S. District Court for the Eastern District of Kentucky, alleging that the Department of Transportation’s (DOT) Disadvantaged Business Enterprise (DBE) Program was unconstitutional. Specifically, the plaintiffs contended that the programs use of race and sex-based presumptions violated the Fifth Amendment’s Equal Protection Clause. Last year, the court issued a preliminary injunction, finding the plaintiffs were likely to succeed on the merits. And now, the DOT apparently agrees with the plaintiffs and the court.
On May 28, 2025, the plaintiffs and DOT filed a joint motion asking the court to enter a consent order. The parties stipulate in the order that the DBE’s use of race and sex-based presumptions is unconstitutional. They ask the court to permanently enjoin DOT from using race or sex-based presumptions in awarding contracts or funding projects.
From Robert’s cover email – DOT’s about-face on its Disadvantaged Business Enterprise Program signals a fundamental shift in diversity-focused contracting. The department’s joint motion with plaintiffs to permanently enjoin race and sex-based presumptions in contract awards isn’t just a legal maneuver—it’s a warning shot for similar programs across the federal government.
