Judge Rules US Highway Program’s Use of Race and Gender in Contracting is Unlawful

By Nate Raymond

A U.S. judge has declared that the U.S. Department of Transportation’s practice of considering race or gender in awarding billions of dollars in federal funding for highway and transit projects aimed at disadvantaged small businesses is unconstitutional.

On Monday, U.S. District Judge Gregory Van Tatenhove, based in Frankfort, Kentucky, ruled that a federal program established in 1983, which identifies businesses owned by racial minorities and women as presumptively disadvantaged, violates the equal protection principles outlined in the U.S. Constitution.

"The court is keenly aware of the past discrimination that certain groups of people have faced in this country," Van Tatenhove noted. "And the court is sure that the federal government has nothing but good intentions in trying to remedy past wrongs."

However, the judge, appointed by former Republican President George W. Bush, emphasized that the federal government cannot categorize individuals in a manner that contravenes the equal protection principles mandated by the Constitution.

He referenced a Supreme Court ruling from the previous year, which prohibited affirmative action policies previously utilized in college admissions to enhance the enrollment of Black, Hispanic, and other underrepresented minority students at U.S. colleges and universities.

The judge has prohibited the Transportation Department from considering race or gender when evaluating contract bids from two companies that filed a lawsuit last year, namely Mid-America Milling Company and Bagshaw Trucking, both operating in Kentucky and Indiana.

A spokesperson for the Transportation Department indicated that they will continue to defend the program as the case progresses, while complying with the court’s decision for now.

This ruling is part of a broader trend, as several courts have recently blocked federal initiatives designed to assist minority-owned businesses following the Supreme Court’s earlier decision.

In March, a different ruling prevented the Minority Business Development Agency, responsible for aiding minority-owned businesses, from denying applicants based on their race.

Since its inception in 1983, Congress has authorized the Disadvantaged Business Enterprise program, which mandates that the Department of Transportation allocate at least 10% of funding for highway and transit projects to disadvantaged businesses. The program was reauthorized in 2021 through the Infrastructure Investment and Jobs Act signed by President Joe Biden, allocating over $37 billion for this initiative.

While any business can potentially qualify as socially and economically disadvantaged, the program has typically presumed that certain racial groups such as Black and Hispanic individuals, along with women, are disadvantaged. The plaintiffs contended that this program discriminates against other racial groups, including white individuals, violating the Fifth Amendment of the Constitution.