Attorney General Todd Rokita leads 17 states in effort to end unconstitutional race, gender rules in INDOT contracts

Attorney General Todd Rokita is leading a 17-state effort in support of the Indiana Department of Transportation’s (INDOT) request for a waiver from the discriminatory and unlawful race and gender-conscious requirements of the U.S. Department of Transportation’s Disadvantaged Business Enterprise (DBE) program. 
 
DBE program regulations require INDOT to consider race and gender when hiring contractors for infrastructure projects.  In many cases, the regulations require INDOT to allocate a portion of federal highway, transit, and airport funds to small businesses owned by individuals who are socially and economically disadvantaged. Federal regulations also force INDOT to employ a presumption that businesses owned by women or members of certain minority groups automatically qualify as disadvantaged, thus placing businesses owned by men or individuals of races that aren’t given special preferences by federal regulations at a competitive disadvantage and undermining fair competition. That presumption impermissibly introduces race and gender classifications into the DBE program. 
 
To ensure it is acting consistent with the Constitution, INDOT has requested that the U.S. Department of Transportation waive the requirement that INDOT use the discriminatory presumption in how it administers the DBE program.   
 
In a letter to the U.S. Department of Transportation, the Indiana-led, multistate coalition argues that the DBE program’s race and gender-based rules are unconstitutional, violate the Equal Protection Clause, and conflict with the Supreme Court’s recent decision in Students for Fair Admissions v. Harvard. The states also argue that granting INDOT waiver would advance President Trump’s historic work eliminating DEI from federal government programs and practices.  Indiana and other states have also previously submitted an amicus brief arguing that the racial and gender aspects of the DBE program are unlawful in the case of Mid-Am. Milling Co., LLC v. USDOT , where private contractors have challenged the presumption’s legality. 
 
“Forcing INDOT to prioritize contractors based on race or gender is unconstitutional and undermines fair competition,” said Attorney General Todd Rokita. “Granting thewaiver INDOT is requesting, is well within the Department of Transportation’s authority and would be a critical step toward ensuring that Indiana’s transportation projects are awarded based on merit, not arbitrary classifications, and aligns with our constitutional duty to uphold equal protection under the law.” 
 
In a related effort, Attorney General Rokita has worked to ensure state procurement policies are aligned with equal protection principles by requiring state contractors to commit not to discriminate on the basis of race and sex in the name of DEI.  That effort complements Governor Braun’s actions to eliminate discriminatory DEI initiatives. In January 2025, Governor Braun issued an executive order forbidding executive branch state agencies from using state funds, property, or resources to “support diversity, equity, and inclusion positions, departments, activities, procedures, or programs if they grant preferential treatment based upon one person’s particular race.” 

President Donald Trump, Attorney General Rokita, and Governor Braun have taken aim at discriminatory DEI programs in a variety of ways to ensure equal opportunity for all. Attorney General Rokita’s letter to the U.S. Department of Transportation is just another step in accomplishing this shared goal. 
 
Read the letter to the U.S. Department of Transportation here.