Issue No. 2 — Fall 2026

The federal enforcement effort

The legal environment surrounding race-conscious programs is changing. For public agencies committed to expanding access to contracting opportunities, the next step is to continue advancing efforts to ensure an equitable contract compliance landscape. With several efforts being made to improperly misapply and misinterpret case law, it is crucial for agencies and businesses to refrain from ending the effort. Instead, it is important to make sure programs are supported by well-documented evidence and barriers to inclusivity are clearly addressed. Legally defensible programs are more important now than ever.

The barrage of attacks is real

In 2025, the Trump administration and federal agencies increased scrutiny of race-conscious programs and practices, including university admissions, scholarships, student programming, hiring, and other institutional practices. For example, the Department of Education announced multiple investigations based on allegations of unlawful race-conscious preferences, expanded reporting, and enforcement efforts. These investigations reflect an environment in which organizations are being asked to closely examine their policies and practices.

The Houston decision extends the scrutiny to public contracting

Similar challenges are also emerging in public contracting, as illustrated by the recent Houston decision. This case raises questions about how agencies support and defend their contracting programs. Our analysis is that the judge did not apply the proper legal standard in this decision. Nevertheless, the decision is important to consider because it may indicate the type of evidence that some courts could require when evaluating these issues. In particular, the decision emphasizes the steps agencies need to take to demonstrate that their policies and practices are supported by an appropriate evidentiary basis. Although we do not believe the court applied the proper legal standard, the decision raises questions that agencies should consider when developing, implementing, and documenting their policies.

Stronger evidence is more important than ever

It’s not time to stop examining disparities or addressing barriers affecting disadvantaged businesses. Instead, agencies should regularly assess the performance of all vendors, develop complete records of all contracts, and regularly conduct legally sound Disparity Studies. Additionally, it is important for agencies to bolster anecdotal and historical analyses given the recent Houston decision. A recently completed Disparity Study, with legally sound statistical and qualitative analyses, should be coordinated with legal counsel to ensure that the program elements conform to the findings of the study.

For business owners: continue to participate and recertify

The current legal environment has created uncertainty for businesses participating in disadvantaged, minority-, and women-owned business programs, and some business owners may question whether there is value in maintaining their certifications or recertifying. Businesses should consider continuing to recertify and participate in available programs. While certification does not guarantee a contract or a particular level of participation, continued engagement helps agencies understand the businesses operating in their markets, identify barriers to participation, and develop lawful programs and procurement strategies that respond to the needs of the business community.

Businesses should not assume that evolving legal requirements mean certification and participation are no longer worthwhile. By remaining certified and engaged, businesses help maintain an active pool of eligible firms and provide agencies with the information and relationships necessary to support a competitive and accessible contracting environment. Continued participation also positions businesses to take advantage of contracting, outreach, and business-development opportunities that remain available under applicable law.

At Griffin & Strong, we are closely following the changing legal climate. Our role is to make the path clearer by helping clients understand the evidence, assess their programs and prepare for heightened legal scrutiny while continuing to pursue fair and inclusive access to public contracting opportunities.

This is not a time to lay down arms. It is a time to make certain that every program is deliberate, supported and defensible.