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Following an advisory opinion from Indiana Attorney General Todd Rokita, Gov. Mike Braun announced Wednesday the state will end a procurement program aimed at helping underrepresented groups access state contracts.
The decision comes nearly a year after the Governor’s Office requested an opinion from Rokita regarding the legality of the Minority and Women’s Business Enterprises, or M/WBE, program and the Governor’s Commission on Supplier Diversity.
On Wednesday morning, Rokita announced that his office had concluded that the Minority and Women’s Business Enterprises program, a feature of the state’s Diversity Business Enterprises Program, is unlawful under the Equal Protection Clause of the Fourteenth Amendment.
In the 43-page opinion submitted to the governor’s office on Tuesday, Rokita recommended the governor take steps with the Indiana Department of Administration to end the program.
Rokita cited Students for Fair Admissions v. Harvard, the landmark U.S. Supreme Court decision in 2023 that declared affirmative action programs unconstitutional.
“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. “The program is both un-American and unconstitutional.”
Also on Wednesday morning, the Governor’s Office announced the state would be winding down the program.
“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 a press release. “Indiana has replaced divisive, politically-charged programs with a focus on Merit, Excellence, and Innovation: a level playing field where every single Hoosier has the chance to get ahead with hard work.”
Last August, the Braun administration sought an opinion from Rokita’s office on the legality of the M/WBE program and the Governor’s Commission on Supplier Diversity, both of which were created in 1983 as part of the Disadvantaged Business Enterprise program, which aimed to support M/WBE and veteran-owned businesses in the procurement system.
According to Rokita’s office, the M/WBE program requires state agencies to allocate a minimum percentage of state funds spent on a contract to M/WBE and veteran-owned businesses. This means, Rokita concluded, that the state is giving “preferential treatment” to certain businesses based on race and sex.
Rokita made clear in Wednesday’s statement that he only recommended the governor end the M/WBE components of the program — not the veteran-owned business component, which he considered to be lawful.
“Having just celebrated 250 years of independence, Hoosiers should have fresh in their minds the words of the Declaration that launched our Revolution: ‘All men are created equal,’” Rokita said. “From Reconstruction to the passage of the 19th Amendment and ending Jim Crow, our country has fought throughout its history to fulfill this promise of equality under the law.”
Ken Falk, legal director for the American Civil Liberties Union of Indiana, said in an email Wednesday that the organization is reviewing the attorney general’s opinion, “but the initial characterization of this program as inherently discriminatory ignores why it exists in the first place.”
“Using the Equal Protection Clause to attack efforts to address discrimination betrays the promise of equality it’s meant to protect,” Falk said. “We are very concerned that ending the program would deepen existing inequities and shut minority- and women-owned businesses out of opportunities.”
With the end of the M/WBE program, Braun said his office would soon announce a new small-business initiative to help more Indiana businesses compete for state contracts.
State Rep. Mitch Gore, D-Indianapolis, issued a statement Wednesday morning questioning Braun’s move to eliminate the M/WBE program, noting that the Governor’s Commission on Supplier Diversity was created by the Legislature and is codified in Indiana law.
“If Governor Braun believes portions of Indiana law should be changed to better reflect evolving constitutional precedent, he should come to the General Assembly and ask us to amend the statute,” Gore said in a press release. “If he believes the law is unconstitutional, he is free to present that argument in court. What he cannot do is unilaterally stop carrying out duties the legislature has imposed simply because his administration disagrees with the policy.”
Indiana has taken aggressive action against diversity, equity and inclusion, or DEI, initiatives in the last year.
Early last year, Braun issued an executive order prohibiting executive branch agencies from using state funds for DEI.
Last summer, Rokita announced that, for contracts signed after July 1, companies wanting to do business with the state must certify they do not engage in DEI practices.
And in September, Rokita announced that he would reject state-agency contracts with any law firm that maintained improper diversity, equity and inclusion initiatives.
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