Last week, six organizations who represent Disadvantaged Business Enterprises moved to intervene in Mid-America Milling Company, LLC, et al. v. United States Department of Transportation, Case No. 3:23-cv-0072-GFVT-EBA. In the underlying lawsuit, the plaintiffs had challenged the Department of Transportation’s use of rebuttable presumption to determine “socially disadvantaged” applicants for purposes of the department’s Disadvantaged Business Enterprise program. As we have previously discussed, the Mid-America court found the rebuttable presumption of social disadvantage in the DOT’s DBE program unconstitutional, and issued an injunction to bar the use of the rebuttable presumption for contracts the two plaintiffs had bid on. It appeared the immediate effect of that ruling was limited to midwestern states where those plaintiffs conduct business.

However, a group of business associations believed that the ruling, combined with recent executive orders issued by President Trump which ban federal government DEI initiatives, could have a much greater effect. The proposed intervenor-defendants include the National Association of Minority Contractors; Women First National Legislative Committee; Airport Minority Advisory Council; Women Construction Owners & Executives, Illinois Chapter; Atlantic Meridian Contracting Corp.; and Upstate Steel (collectively, the “Intervenors”). The Intervenors describe the DBE Program as “a critical tool that Congress has repeatedly authorized to address past and present effects of discrimination.” They argue they have a right to intervene in the lawsuit because the DBE program has benefitted  its members by according them access that has historically been—and otherwise would continue to be—denied. Congress has recognized the gap in access the Intervenors describe: the DBE program has been repeatedly reauthorized since its inception in 1983.

The Intervenors’ motion was spurred by two executive orders. The first, issued on January 20, 2025, directed agencies to align their litigating positions with the administration’s new policy to terminate diversity, equity, and inclusion (DEI) initiatives. The second was issued January 21, 2025 and ordered that employment, procurement, and contracting practices of federal contractors and subcontractors shall not consider race or gender. The directives in the second executive order also require every federal contract or award to certify the recipient does not operate any programs “promoting DEI that violate any applicable Federal anti-discrimination laws.” In response to the executive orders, the DOT—the agency responsible for administering the DBE Program and initially defending it—is likely poised to support plaintiff Mid-America Milling Company’s efforts to end it.

The Intervenors seek to “fill a critical role by providing an adequate defense of a program that has been understood to be constitutional for 42 years.” Their motion is filed at a time when programs like the DBE program are ripe for challenge and risk going undefended by the current administration. Though the effects of the DEI-related executive orders on federal programming are only beginning to be seen, there could be many further motions to intervene from companies and individuals who are directly or indirectly affected by these programs, and this motion could signal a backlash from those who have relied on federal diversity programs and cannot expect this administration to defend pro-DBE policies.

It is crucial to note, in light of the Mid-America ruling in September 2024 (and the July 2023 decision in Ultima Servs. Corp. v. U.S. Dept. of Agric., 2:20-CV-00041), that the DOT has shifted from using race and gender as the basis for certification under DBE Programs. For instance, non-minority males can be certified as a disadvantaged business if they can show they are socially and economically disadvantaged on a case-by-case basis. Thus, it could be argued the DBE Program might not fall under the DEI programs targeted by the Trump administration. Realistically, however, the current administration seeks to remove DEI initiatives using policies that could harm the DBE Program as well. We can expect future federally funded projects will suffer significantly reduced DBE goals, which could ultimately eliminate the DBE Program altogether.

This article summarizes aspects of the law. This article does not constitute legal advice. For legal advice regarding your situation, you should contact an attorney.