A Bid for Constitutionality
Category | Announcements
By Matthew T. Collins, Elena M. Senftner and law clerk Cassidy P. Hartig
Matt Collins and Elena Senftner are members of the firm’s Construction Law Department. Matt can be reached at 612.359.7610 or mcollins@fwhtlaw.com. Elena can be reached at 612.359.7689 or esenftner@fwhtlaw.com.
Since it started at the federal level in 1987, Disadvantaged Business Enterprise (“DBE”) programs have played a significant role in the award of most state, county and municipal public procurements. Good faith efforts – often in the eye of the beholder – could make or break a contractor’s bid. The U.S. Supreme Court’s decision in Students for Fair Admissions Inc. v. President and Fellows of Harvard College, 600 U.S. 181 (2023), addressed university admissions rather than government contracting. Nevertheless, its reasoning has prompted courts and government agencies to reexamine race-conscious DBE programs under the Equal Protection Clause.
On May 28, 2026, the Metropolitan Council (“Met Council”) issued a bid protest rejection letter stating that the U.S. Supreme Court’s decision in Students for Fair Admissions Inc. v. President and Fellows of Harvard College (“SFFA v. Harvard”) and the Equal Protection Clause of the Fourteenth Amendment does not apply to Met Council’s Metropolitan Council Underutilized Business (“MCUB”) contract requirements. Met Council reasoned that because the MCUB program is state funded rather than federally funded, SFFA v. Harvard did not apply. Although low-bidder New Look Contracting, Inc. (“New Look”) decided not to further challenge its bid protest, this case study provides insight into the continued reliance on legacy DBE programs that are not narrowly tailored to a compelling government interest at taxpayers’ expense.
SFFA v. Harvard Casts Doubt on Traditional DBE Programs
Before 2023, courts relied on Adarand Constructors, Inc. v. Peña, where the U.S. Supreme Court assumed racial classifications were unconstitutional. 515 U.S. 200, 227 (1995). The case did not determine whether DBE programs met that rigorous standard. Id. The Court only noted that the government “is not disqualified” from responding to racial discrimination. Id. at 237. Courts understood this case to require careful analysis of DBE programs but not to ban them. Sherbrooke Turf, Inc. v. Minnesota Dep’t of Transp., 345 F.3d 964, 969 (8th Cir. 2003). Then, a few years ago, the Supreme Court clarified its rule on racial discrimination.
In 2023, the U.S. Supreme Court issued the SFFA v. Harvard opinion. In the case, the Court held Harvard’s race-based admissions program unconstitutional under the Equal Protection Clause. 600 U.S. at 231. Although the case arose in the university admissions context, its reasoning has since been invoked by courts and federal agencies evaluating race-conscious government contracting programs. Through a robust illustration of past decisions, “[The Supreme Court] recognized [] repeatedly [that the] ‘clear and central purpose of the Fourteenth Amendment was to eliminate all official state sources of invidious racial discrimination in the States.’” Id. at 206. (quoting Loving v. Virginia, 388 U.S. 1, 10 (1967)). In other words, the Court held that the Fourteenth Amendment applies to states and protects all races from discrimination.
Although SFFA v. Harvard arose in the university admissions context, the Court reiterated longstanding Equal Protection principles governing all governmental racial classifications. Those principles—including strict scrutiny, measurable objectives, and meaningful judicial review—have become the framework through which courts are evaluating race-conscious procurement programs.
The first significant application of SFFA v. Harvard to a federal DBE program came in Mid-America Milling Company, LLC v. United States Department of Transportation, where the Kentucky federal district court held that the ruling in SFFA v. Harvard applied to DBE programs, so the race and gender presumptions were unconstitutional. No. 3:23-CV-00072-GFVT, 2024 WL 4267183, at *10 (E.D. Ky. Sept. 23, 2024), opinion clarified, No. 3:23-CV-00072-GFVT, 2024 WL 4635430 (E.D. Ky. Oct. 31, 2024), and order dissolved, No. 3:23-CV-00072-GFVT, 2026 WL 777407 (E.D. Ky. Mar. 19, 2026). The court stopped the U.S. Department of Transportation (“USDOT”) from requiring race and gender requirements in its contracts that Mid-America bid. Id. at *13.
The decision in Mid-America Milling was a wake-up call for the federal government. USDOT responded by issuing an Interim Final Rule (“IFR”) in October of 2025. The IFR “removes race- and sex-based presumptions of social and economic disadvantage” from DBE programs because those presumptions violate the Fourteenth Amendment. 49 C.F.R. pts. 23, 24 (2025). The IFR requires states to recertify DBEs through individualized evidence and decertify those who do not meet the new requirement. Id. Until the recertification process is complete, the IFR halts DBE goals. Id. This is the political setting where contractors and subcontractors find themselves today: USDOT has suspended the use of race- and sex-based presumptions while states complete the reevaluation process.
Minnesota’s Metropolitan Council Continues to Rely on Legacy DBE Classifications
Some local government entities have not entirely removed DBE reliance in bidding, despite the constitutional questions surrounding those programs after SFFA v. Harvard. Met Council requires contractors who bid on their projects to meet the MCUB program participation goal or show a good faith effort to do so. As a member of the Minnesota Unified Certification Program (“MNUCP”) and a government entity, Met Council cannot set DBE goals until MNUCP completes the reevaluation process under the IFR. MNUCP, About the DBE Program, https://mnucp.org/about/about-the-dbe-program/ (last visited June 23, 2026). However, Met Council relies on DBE certification as one of the four ways a contractor can qualify as an MCUB.
Met Council is only partway through its reevaluation plan, with twenty-seven decisions left mid-way through June of 2026. Sean Skibbie, DBE Program Update at the Minnesota State Bar Association 2026 Construction Law Forum (June 16, 2026). By continuing to rely on pre-reevaluation DBE classifications, Met Council exposes the program to constitutional challenge. Met Council’s continued reliance on those classifications raises significant constitutional questions and may limit competition among otherwise responsive, responsible bidders.
Met Council’s Rejection of New Look’s
Bid Protest Relied on Earlier Equal Protection Precedent
On May 13, 2026, New Look, as the low, responsible, and responsive bidder, issued a bid protest to Met Council after it lost the award of a contract for failing to demonstrate so-called good faith efforts to secure MCUB participation. Although New Look was the apparent low bidder, Met Council did not award it the contract because New Look failed to demonstrate compliance with the MCUB participation requirements. New Look contended that those requirements violated the Fourteenth Amendment. At bid time, New Look did not submit evidence of a good faith effort to meet the MCUB program because it understood that all DBE-type programs were on hold and MNUCP agencies could not set DBE goals on projects “solicited on or after October 3, 2025.” MNUCP, DBE/ACDBE Reevaluation Process FAQs, 1, 1 (2026), https://mnucp.org/media/5ndjyjwe/mnucp-dbe-acdbe-reevaluation-process-faqs.pdf. New Look argued that, under SFFA v. Harvard, Mid-America Milling, and the IFR, the solicitation should not have included DBE-based participation goals since Met Council received bids for this project on April 30, 2026.
In its rejection of the bid protest, Met Council stated that because Minnesota statutes allowed the creation of its MCUB program, the holding in SFFA v. Harvard did not apply.
The decision in SFFA v. Harvard identified, however, several fundamental flaws in many DBE-type programs. First, any compelling interest underlying these programs must be subjected to meaningful judicial review that allows courts to measure the goals and know when the goals have been reached. 600 U.S. at 214. Second, the DBE-type programs must have a “logical end point” to satisfy the Equal Protection Clause of the Fourteenth Amendment. Id. at 221.
Rather than justify its MCUB program based on the requirements set forth in SFFA v. Harvard, Met Council relied upon the thirty-year-old decision in Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995) to claim the program remained legal. Moreover, Met Council stated that because SFFA v. Harvard did not directly overrule Adarand, it would not consider SFFA v. Harvard binding precedent. Further, Met Council stated that the case in Mid-America Milling did not apply to Minnesota to argue that its bid procurement process was lawful. By combining the two, Met Council implied the Supreme Court approved of previous DBE program (“Adarand ultimately ruled that the DBE Program satisfied [the Supreme Court’s analysis requirement].” Emphasis added).
The Supreme Court has made no such ruling, yet Met Council doubled down on its DBE position, arguing that “unless and until Adarand is reversed, the MCUB program remains valid.” That position overstates Adarand. The Supreme Court did not uphold the specific DBE program at issue; rather, it held that racial classifications are subject to strict scrutiny. Nor does the 30-year-old case contradict SFFA v. Harvard. On the contrary, SFFA v. Harvard cites Adarand when establishing the level of analysis required under the law. 600 U.S. at 206. Although Adarand established strict scrutiny for racial classifications, SFFA v. Harvard provides the Supreme Court’s most recent articulation of how that scrutiny operates. The United States DOT’s Interim Final Rule reflects the federal government’s view that existing DBE regulations required modification following SFFA v. Harvard. Whether the MCUB program should likewise be modified presents the central constitutional question discussed in this article.
Met Council cited another case called Sherbrooke Turf, Inc. v. Minnesota Dept of Transportation. The court decided that case long before SFFA v. Harvard, though, so it could not apply the current law. The federal government’s response following SFFA v. Harvard raises constitutional questions that Sherbrooke Turf did not have occasion to address. The IFR’s removal of race- and sex-based presumptions also calls into question whether legacy DBE classifications continue to satisfy the “proper purpose” analysis discussed in Sherbrooke Turf and relied upon by Met Council.
Met Council claimed in its response to the bid protest that “DBE Statutes and Regulations do not apply to state-funded MCUB Projects.” Under this argument, Met Council claims the DBE and MCUB programs are “entirely separate,” while adopting the DBE program into the MCUB program. The result implies that Met Council, as a government entity, is somehow exempt from following the U.S. Constitution and federal law, but that is not the case. The Fourteenth Amendment and federal constitutional precedent apply to all government entities, whether state or federal, no matter where their funding originates.
Conclusion
Whether courts ultimately conclude that MCUB complies with the Equal Protection Clause remains to be seen. What is clear, however, is that SFFA v. Harvard, Mid-America Milling, and USDOT’s Interim Final Rule have fundamentally altered the legal landscape. Public owners should ensure that procurement practices reflect evolving constitutional requirements, and contractors should carefully evaluate bid requirements that continue to rely on legacy DBE classifications. Until appellate courts provide further guidance, disputes over the continued use of legacy DBE classifications are likely to remain a recurring feature of public procurement litigation.
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