Daniel Lennington of the Wisconsin Institute for Law & Liberty (WILL) explains that the Biden administration's "disadvantaged business enterprise" (DBE) program, administered by the U.S. Department of Transportation, is "quite literally how we build highways in America and how we have built highways and bridges in America since 1980."
"The federal government gives money to states, and the states are permitted to take that money and hire contractors to lay the concrete or the asphalt, put in the berms, put in the bridges," the attorney continues. "But the federal government since 1980 has mandated that about 10% of all the money spent must be spent on contractors, on businesses that are owned by women and certain minorities."
Given the Supreme Court ruling this summer that affirmative action – in the educational context – is illegal, WILL is challenging this in federal court.
In that case, the Supreme Court rejected the North Carolina and Harvard programs that gave preferences based on race in higher education admissions. In doing so, Lennington says they laid out a rule that said governments must have a compelling state interest to do that.
"Just being interested in diversity, or just trying to help out one race is not a compelling interest," he asserts.
The only way a government can discriminate in favor of a race is to remedy a specific instance of past discrimination. If a police department, for example, was found to have discriminated in officers promotions, then that police department could take steps to remedy that specific discrimination.
The federal government, however, cannot generally discriminate in favor of one race or another just to cure perceived societal discrimination or systemic racism.
"The holding from the U.S. Supreme Court is very simple: The Constitution demands equal treatment," Lennington continues. "You can't deviate from that without some very good reasons, and this program here does not meet that test."
So, WILL is trying to expand that recent court holding to prevent the Biden administration from continuing its racially discriminatory programs against small businesses in America.
This is the conservative law firm's 11th lawsuit against the Biden administration since 2021. In this case, WILL has two clients: Mid-America Milling Company LLC (MAMCO) and Bagshaw Trucking Inc.
First they will ask for an injunction to prohibit this type of discrimination, and they hope to be arguing their case in front of a judge by the first part of the new year.
