Airport Experience® News - ACDBE Issue 2025

“It’s time for discrimination to end,” according to Dan Lennington, deputy counsel with the Wisconsin Institute for Law & Liberty, which has filed several lawsuits arguing against affirmative action and diversity, equity and inclusion policies, in a statement announcing the lawsuit. “Our clients are hardworking small business owners who just want to build roads and make America a great place for everyone. But time and time again, they lose out on business because of their race and gender.” The Status While Mid-America and Bagshaw are highway contractors and the case currently affects only the construction portion of the regulation, which was enacted in 1983 to remedy the ongoing effects of past discrimination, the DOT also oversees the DBE program as it relates to airport projects. So, industry observers say, it’s a matter of time before these cases hit airports, including the DBE program’s cousin, the Airport Concessions Disadvantaged Business Enterprise (ACDBE) program. The lawsuits, coupled with the Trump Administration’s distaste for diversity and affirmative action programs, has airport industry stakeholders concerned for the future of these affirmative action programs. The case has already had an impact on bidding for federally funded infrastructure projects since it was filed. A preliminary injunction has been issued against the use of DBE contract goals on contracts in which the two subcontractor plaintiffs are “interested in bidding.” As of mid-May, there has been a voluntary stay to allow the parties time to resolve the case. As those discussions continue, program supporters are bracing themselves for the likelihood the DBE program may be facing its biggest changes since implementation nearly 40 years ago. This case – and others – are still at the state court level, but there’s an expectation they’ll move up the system toward the U.S.

Supreme Court, which has a conservative make-up and has not been friendly in its own right to affirmative action in recent years, says Warner Session, founder of Session Law Firm and former member of the Metropolitan Washington Airport Authority Board . “The first salvo were the Harvard [University] and North Carolina education cases where they said race could no longer be used in evaluating admission,” he says. “That’s really the hook these plaintiffs are now citing.” The Federal District Court in this case in October issued a narrow preliminary injunction suspending the use of race and gender-based presumptions in the case with respect to bids involving Mid-America and Bagshaw. In November, the court extended and clarified its injunction to include all states in which the plaintiffs bid for contracts. In The Meantime While waiting for the current stay to play out, several organizations have joined the USDOT with the goal of defending the DBE programs. Those include the Airport Minority Advisory Council , which, in a statement, cited US DOT data in saying DBE certified operators have earned $34 billion over the past five years. “The DBE program is designed to remedy ongoing discrimination and the continuing effects of past discrimination against minorities and women,” the organization wrote in the October statement. “As we know, our airport members serve as dynamic hubs that provide essential transportation services, stimulate economic growth, create employment opportunities and contribute significantly to the prosperity of local communities and the broader national economy. A critical part of the ecosystem is minority and women-owned businesses that support infrastructure growth and accelerate local economic development and American global competitiveness.”

Other supporters include the National Association of Minority Contractors (NAMC), Women First National Legislative Committee, Women Construction Owners & Executives, Illinois Chapter (WCOE Illinois), Atlantic Meridian Contracting Corp and Upstate Steel. The groups are being represented by Democracy Forward, the Minority Business Enterprise Legal Defense and Education Fund and Wyatt, Tarrant & Combs LLP. “This case is an attempt to devastate businesses owned by people of color and women across the nation and it is absolutely essential that the businesses that will be most harmed by the result of the case should be heard,” said Sarah von der Lippe, pro-bono counsel for MBELDEF, in a statement at Democracy Forward’s website. “Minority- and women-owned businesses have been burdened by discrimination for centuries. It is both legally right and morally necessary for the government and the private sector to take action to remedy that discrimination.” “Given the extent of virulent discrimination against minority-owned businesses, the federal government’s response has generally been far too tepid,” adds Wendell Stemley, national president for NAMC, in the same statement. “The DBE program provides important opportunities for minority-owned businesses and it should be expanded to meet the demand of rebuilding our infrastructure, not gutted.” The Caveat That said, there are significant challenges to the program beyond just the court cases. While Trump cannot unilaterally “Minority- and women-owned businesses have been burdened by discrimination for centuries. It is both legally right and morally necessary for the government and the private sector to take action to remedy that discrimination.”

Program supporters are bracing themselves for the likelihood the DBE program may be facing its biggest changes since implementation nearly 40 years ago.

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AX NEWS JUNE 2025