CONSTRUCTION DEFECT JOURNAL

"News and Information for Construction Defect and Claims Professionals"

CONSTRUCTION DEFECT JOURNAL - ISSUE 242749 - THURSDAY, JANUARY 16, 2025

Students for Fair Admissions: Shaking the Foundations of EEOC Programs and M/WBE Requirements

Judges standing behind bench

All race-based programs and, by extension, potentially all gender-based programs—including ones that require or reward participation of Minority Business Enterprises or Women Business Enterprise in construction programs—currently stand on shaky ground.

October 16, 2023
Denise Farris Scrivener - The Dispute Resolver

On June 29, 2023, the Supreme Court issued a landmark decision, Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, holding that race-based affirmative action programs in college admissions violate the Equal Protection Clause of the Fourteenth Amendment. 143 S. Ct. 2141, 216 L. Ed. 2d 857 (2023). On July 13, 2023, thirteen state Attorney Generals, relying on Students for Fair Admissions, issued a joint letter to the CEOs of the Fortune 100 companies, urging the elimination of all race-based programs in EEOC and government and private contracting. On July 19, 2023, a Tennessee district court judge issued an injunctive order against the Small Business Administration’s 8(a) application program on the basis of the program’s race-based presumption of disadvantage. Ultima Servs. Corp. v. U.S. Dep't of Agric., No. 220CV00041DCLCCRW, 2023 WL 4633481 (E.D. Tenn. July 19, 2023).

The message to be taken from these developments: all race-based programs and, by extension, potentially all gender-based programs—including ones that require or reward participation of Minority Business Enterprises (“MBE”) or Women Business Enterprise (“WBE”) in construction programs—currently stand on shaky ground.

This post will explain the constitutional foundations at play, the decisions shaking things up, and why well-rounded dialogue is urgently needed to address the status of these programs before they’re dead in the water.

Ms. Scrivener may be contacted at denise@farrislegal.net


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