Indiana ends race- and sex-based components of state’s diversity program after AG deems them unconstitutional

Indiana Gov. Mike Braun, a Republican, directed the state to end race- and sex-based preferences in government contracting July 15 after Attorney General Todd Rokita issued a formal advisory opinion concluding that the state’s Minority and Women’s Business Enterprise program violated the U.S. Constitution.

“This blatantly illegal program singles out some Hoosiers for disfavored treatment purely because of their sex or the color of their skin, and it insults other Hoosiers by suggesting they cannot compete on a fair playing field,” Rokita said in a press release from his office. “The program is both un-American and unconstitutional.” 

According to the release, the program required state agencies to apply race- and sex-based participation goals in many state contracts by seeking to direct a minimum percentage of state contract spending to minority- or women-owned businesses. Those unable to meet the participation goals had to document good-faith efforts to qualify for a waiver. 

Failure to satisfy the program’s requirements could result in rejected bids, withheld payments, contract termination, or debarment. The state also certified participating businesses based partly on the race or sex of their owners.

Citing the U.S. Supreme Court’s 2023 decision in Students for Fair Admissions v. Harvard, Rokita concluded that the program’s race-based participation goals, certification standards, subcontracting requirements, and enforcement mechanisms could not survive strict judicial scrutiny.

Braun said his administration would replace the program with a system that awards contracts based on merit.

“Our Constitution mandates equal protection under the law, because a system where the government picks winners and losers on the basis of race or sex can never be fair,” Braun said in the release. “Indiana has replaced divisive, politically-charged programs with a focus on Merit, Excellence, and Innovation.”