Two construction companies are suing the Department of Transportation (DOT), asking that the court ban the DOT’s Disadvantaged Business Enterprise Program (DBE), an affirmative action program that awards contracts to minority-owned and women-owned small businesses in DOT-funded construction projects.

Plaintiffs asked for a preliminary injunction and the DOT responded, arguing that Plaintiffs were not entitled to it because they were not likely to win the case due to a lack of standing. Defendants also argued that even if the Plaintiffs had standing, DBE did not violate the Equal Protection Clause and that the government had a compelling interest in remedying past and ongoing discrimination in the transportation industry.

On September 23, 2024, the court found that the "presumption of disadvantage" applied to certain minority- and women-owned businesses violated the Equal Protection Clause, and granted a preliminary injunction mandating that DOT not use the presumption for DOT contracts impacted by DBE goals on which Plaintiffs bid. The court found that while "racial barriers still persist when it comes to the success of minority-owned businesses," the government had only pointed to general "societal discrimination" against minority-owned businesses, but not evidence of past discrimination against the specific groups favored by the presumption of disadvantage. The court stated: "If it wants to grant preferences to certain groups, it must specifically show how the Department of Transportation has previously discriminated against those groups."

On October 31, 2024, the court clarified the scope of the preliminary injunction, finding that DOT's interpretation of the injunction was narrow and would cause further harm to Plaintiffs. DOT interpreted the injunction to be geographically limited to Indiana and Kentucky due to Plaintiffs' emphasis on Plaintiffs activities and bidding in Indiana and Kentucky. However, as Plaintiffs bid in many other states, the court clarified that the injunction reaches all states in which the Plaintiffs operate or bid on DOT contracts impacted by DBE goals.