Airport Experience® News - ACDBE Issue 2025

diversity in airport projects and what’s your sense for how that would look nationwide? HOLT: We will certainly see more “race neutral” programs and program elements. While remedies directed at the problem of discrimination on the basis of race or gender were severely curtained in the wake of Western States v. Washington State Department of Transportation, many agencies commissioned “disparity studies” and adopted race-conscious program elements, leading to a mix of program elements. I have been counseling for many years that we need to focus more on awards to DBE prime firms (these are NOT subcontracting only programs), so those approaches would all be race-neutral anyway. It will also force agencies that do not want to see a reversion to the days when almost all the work went to larger firms and firms owned by White men to examine their own behavior and operations. Who cares about the DBE program if the agency doesn’t pay on time? Can contracts be “unbundled” into smaller or less complex scopes to allow smaller firms to successfully bid on them? Are experience standards overly restrictive? What about insurance requirements (do you really need $3M of commercial general liability coverage for a $150,000 contract?)? Is the owner ensuring non-discrimination by examining the prime contractors’ bidding processes? What about setting aside contracts for bidding only by small firms, or providing extra evaluation points for small prime proposers? I’m not pretending that losing the direct remedy for race and sex discrimination isn’t going to hurt minority- and woman owned businesses; it will, as we saw in the wake of Western States and the outlawing of civil rights remedies in California and Washington State. But the federal courts were moving in this direction before Trump, and after the Students for Fair Admission v. Harvard decision, the trend is clear. My advice to DBEs is to take a hard look at your business and focus on upgrading your skills and working your networks. Prime contractors and owners must beef up their outreach efforts and reduce internally created barriers to small firms. These will not be a panacea, but it will be better than nothing.

affirmative action programs in recent years. She shared some of her observations with Freelance Reporter Andrew Tellijohn on what has happened and on what might be to come. TELLIJOHN: How has this case changed the DBE/ACDBE programs so far and what do you see as the implications going forward? HOLT: The plaintiffs have asserted they seek to work in 23 states (which is highly questionable, but the court took this at face value!). This has resulted in solicitations being readvertised or amended to delete a DBE contract goal. TELLIJOHN: Several organizations have jumped in to support the DOT, including the Airport Minority Advisory Council. But Trump oversees the DOT – what does that mean for defense of the program and for what changes might result from this litigation? HOLT: My expectation is that the Trump administration will somehow seek to contain, or even eliminate, at a minimum, DBE contract goals. It will be interesting to see if the court will allow outside parties to intervene to keep the litigation alive when the defendant seeks to end it. TELLIJOHN: President Trump can’t unilaterally eliminate the program, but Trump’s DOT/FAA oversees it – and staffing at the FAA has been reduced significantly – how does that affect compliance, oversight, etc. now and into the future?

HOLT: It is difficult to administer a program that is federally mandated if the federal agency chooses not to adequately staff or resource it. There is a rumor that the DOT’s Civil Rights Offices (and other federal departments) will be disbanded. This will obviously negatively impact enforcement and compliance. That said, recipients and contractors that believe in civil rights and want to continue to break down barriers caused by historic discrimination against racial and ethnic minorities and women in the transportation industry can continue effective efforts to do so. TELLIJOHN: How are or how should airports respond with respect to the demands of the executive branch versus the existing requirement for them to achieve diversity goals on federally funded projects? HOLT: It is important to remember that Executive Orders are not statutes or laws. The President can only order those under his direct control to take, or refrain from taking, specific actions. The DBE and ACDBE programs are still the law, and the regulations at 49 CFR Part 26 and Part 23 remain fully in effect and binding on recipients. TELLIJOHN: What’s the future – is it a race/gender neutral future? The Western States Paving case of 2006 has guided the 9th Circuit for nearly 20 years now – how has that worked with respect to retaining

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AX NEWS JUNE 2025