in-20260805-IR-010260263AOA: OFFICE OF THE ATTORNEY GENERAL

Summary

RE: Legality of Indiana's Diversity Business Enterprises Program You requested an opinion from the Office of the Indiana Attorney General (“OAG”) regarding the legality of Indiana's Diversity Business Enterprises Program and the Indiana Department of Administration's (“IDOA”) legal obligations under current Indiana Code provisions regarding the program. Indiana's DBE Program operates on explicit race- and sex-based classifications by which the State gives preferential treatment in state procurement to certain businesses on account of the race and sex of the individuals who own and control those businesses. As detailed below, that kind of invidious discrimination violates the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution. It is an affront to “the promise of equality under the law . . . that has guaranteed a Nation of equal citizens the privileges or immunities of citizenship and the equal protection of the laws.” Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 600 U.S. 181, 279 (2023) (Thomas, J., concurring). Further, in certain, rare cases, an executive branch officer is justified in declining to execute or implement an unconstitutional statute. In particular, where a law is both clearly unconstitutional and unconstitutional in a way that severely infringes on individuals' constitutional rights, it is appropriate for the executive branch to treat the law as null and void. The unlawful aspects of the DBE Program...

The agency’s own summary, as published.