Today on GovCon Intelligence, I’m joined by Jayna Rust, a partner at Thompson Coburn and an adjunct professor at The George Washington University Law School. We break down the long-term impact of the 2023 Supreme Court affirmative action ruling on government contracting, including a look at whether there is a flood of DEI-driven discrimination claims. Because she also works on wills and trusts, we rounded out the conversation by covering what GovCon owners need to think about when preparing their estate plans.
Links
Jayna Rust bio at Thompson Coburn
Students for Fair Admissions decision
The Democratic Brand Is Toxic in Too Many States by Matthew Yglesias (The New York Times)
Should Moving to the Middle Win Candidates Votes? It Depends Where Voters Are by David Broockman and Joshua Kalla
VSBC Appeal of American Defense Builders Trust, SBA No. VSBC-395-A (2024)
VSBC Appeal of Vialytix, LLC, SBA No. VSBC-462-A (2026)
A transcript follows.
Introduction and Guest Background
Sam: Welcome to GovCon Intelligence. My guest today is Jayna Rust. Jayna, thanks so much for joining us.
Jayna: Yeah, thanks for having me. It’s great to be out here.
Sam: Terrific. Jayna is a partner at Thompson Coburn in Washington, DC. She advises recipients and awardees of federal contracts, grants, loans, and other financial assistance, and represents them in litigation involving claims and bid protests. She’s a graduate of the George Washington University Law School, and she’s also an adjunct professor there.
The Impact of Students for Fair Admissions on Government Contracting
Sam: I wanted to get started with how we got to know each other. You organized a panel, it seems three years ago at this point, for the American Bar Association at their public procurement conference. It was about the Supreme Court’s Students for Fair Admissions case. We’re about three years out from that. That was in 2023. It’s 2026, and it’s had a huge impact, I think, across the whole country, but particularly in our industry of government contracting. Could you take us back to that case? What did the case say? What were your first impressions of it when it first came out?
Jayna: It’s funny that you mentioned that case because when I’ve been dealing with a number of things this year with anti-DEI issues, that panel comes to my mind a lot. Our panel was in November of that year, but we were planning it as early as the spring of that year, getting ideas for what we would do for that conference. When we first started planning, the Supreme Court had not issued the decision yet, but we knew it would come out sometime before the conference and we thought there might be something to that. Part of why I was pushing the conference to think about it was because I remember my third year of law school. By that point, I already knew I wanted to do government contracts. Because I was a nerd—who else knows by the third year of law school they want to do government contracts law?
Sam: You did go to GW, and they have a great program.
Jayna: That is true. That was what led me down that path. But I remember being in my constitutional law course, reading the affirmative action decisions about Michigan, and thinking, “All of the cases they’re citing are government contracts cases.”
Sam: Adarand?
Jayna: Yep, and Croson. And those decisions about how federal money should be spent. That’s what the Supreme Court was thinking about when they permitted the Michigan schools to do certain things. Once the challenges came up for Students for Fair Admissions, I remember pinging that in the back of my head: “This is a case I need to watch.” Because however this decision comes out, it’s going to affect government contracts. I had that case on my radar, waiting to see how that would play out. We started to get a pretty good idea of how that case was going to come out even before the decision was issued in June. I remember that was right around the time when I contacted you and a few others to see if you’d be interested to be on the panel. We wanted a broad swath of folks because we weren’t sure how quickly the decision would roll down to government contracts. The decision was focused on college admissions, right? Specifically on the admissions programs for Harvard and the University of North Carolina, and whether or not their admissions programs violated the equal protection provisions of the 14th Amendment of the Constitution. I think a lot of folks viewed that case as, “Oh, this only applies to affirmative action in college admissions.” But when I was thinking back to my constitutional law class from law school, I thought, “Okay, yes, that’s all the Supreme Court said, but when we look at what was behind all of those earlier decisions, we know it’s going to come out in government contracts.” Sure enough, we had just started planning when the district court in Tennessee issued a decision involving the 8(a) program.
Sam: It’s the Ultima Services case.
Jayna: Exactly. That was less than a month after the Supreme Court’s decision in Students for Fair Admissions. The judge in that case basically said that there can’t be the rebuttable presumption based on race that the 8(a) program had been built around for quite a while. So by the time we had our panel, it was rolling very quickly.
Sam: It was a very well-attended panel from what I remember.
Jayna: Yeah. It was great because you were able to speak about the federal small business side of things and how it may impact that side. We had another speaker that was able to talk about how state and local governments had implemented various Supreme Court cases that had been cited throughout the Michigan cases, and how those may be impacted by the decision. We had a labor and employment attorney to talk about affirmative action from the hiring and employment standpoint, and someone to talk about it from a finance standpoint. To me, it was just a great way to talk about all of these things that were going to impact government contractors—from state and local government contractors to people who employ persons as government contractors to the federal side. I really liked that panel.
Labor, Employment, and DOJ Enforcement
Sam: I don’t do labor and employment. That’s not an area that I practice in, so I was really interested in what the labor and employment lawyer said on that panel. I remember this dramatic moment where he said companies need to stop giving preferences for race or for gender because that’s illegal. I guess he’s right, that probably is illegal. It turns out that has been a very big focus of this administration and the Justice Department—not just looking at programs like the 8(a) program, but also at individual companies and their previously called DEI programs, diversity programs, or HR hiring practices. Have you seen that in your practice as well?
Jayna: Definitely. Part of that is my practice does cross over into the government contracts labor and employment side of things. Because of Executive Order 11246 requirements, a lot of contractors would have affirmative action programs related to minorities and women. After the president’s executive order last year in 2025 revoking Executive Order 11246, I was brought in by a number of companies and universities to look at their affirmative action programs and see what they had done. It was a bit surprising how many programs had policies that I think would not withstand true scrutiny and challenges.
Sam: That’s so interesting. Another contemporaneous thought about that case was the footnote, which was a big deal. It was about the military academies, saying this is improper for universities like Harvard and UNC, but maybe military academies—like the Naval Academy or West Point—might be able to make a case for continuing affirmative action practices because of either the diversity of the military or the diversity of their student bodies. Has anything happened with that footnote? Does that come up anymore?
Jayna: I’ll be honest, I haven’t seen that, but that doesn’t mean it hasn’t come up.
Sam: Yeah, I just wonder if anybody’s tried to take advantage of that footnote, but I haven’t seen it either.
Reverberations in Grants and Financial Assistance
Sam: Okay, let’s turn to you. We mentioned in your bio that you work on grant programs, financial assistance, and contracts. What have the reverberations of the Supreme Court’s decision been in all of the areas that you work, including grants and financial assistance?
Jayna: After that decision came out, contractors and federal grant recipients started to question whether or not they may have litigation liability for some of their preferential programs, whether it be hiring, vendors, or just any of their programs. They started to reach out slowly after Students for Fair Admissions. A number of those entities made changes during that time period. But when President Trump issued the executive order that revoked 11246, to me, that’s what really hit the accelerator.
Sam: Yeah, they’re really paying attention to it now.
Jayna: Yeah. A lot of people like to say that executive order was a sea change and completely changed the landscape. I think it did, but I think it was already moving that way. Companies were already starting to review things in light of Students for Fair Admissions and the other cases coming up, taking a closer look at programs. There was already that litigation liability they might have from class actions from students, depending if they were universities. The executive order just increased the potential for liability and increased the focus on it. But I’ll be honest, I don’t know that the executive order changed things that dramatically given what I think we were already going to see from Students for Fair Admissions. It would’ve come out just through case law decisions and been a slower point of where we were going to get.
Sam: Has that prep after the case been worthwhile? Have you seen actions from, say, the Civil Rights Division at the DOJ against private companies or contractors for things that maybe were in their programs before and they haven’t taken out?
Jayna: The Department of Justice has said they’ve started those investigations, and there are rumors out there about which companies have gotten those notices. So I do think there are companies getting hit, and they’re certainly getting questions from their contracting agencies or funding agencies at the very least. I think that is the first step toward potential enforcement down the line from the Department of Justice as well.
The 8(a) Program Under Scrutiny
Sam: There’s probably no bigger issue in government contracting—at least in small business government contracting—than this anti-DEI push that’s been very impactful and probably detrimental to the 8(a) program. You have the sledgehammer memo from the Hill, these 8(a) investigations, and there will probably be some sort of rule that comes out from the SBA soon. What are your thoughts about that? Based on what you know about the case and what has happened at the Justice Department, do you think what’s happening in 8(a) was expected as a natural consequence of that case, or is there something else going on there?
Jayna: I think it’s a little bit of both. I say that because I do think we were going to see challenges to the 8(a) program after Students for Fair Admissions. I would’ve been floored if we had gotten a decade in and there had been no challenges to the program. The Ultima case is a perfect example of something that had been a challenge even before Students for Fair Admissions had been decided, and that case started to have ripple effects. Obviously, the SBA had to start conducting some kind of review at that point. To me, it seemed somewhat inevitable that there would be changes to the program. I don’t know that people thought there would be the scale of the sledgehammer kind of review. I think people thought it was going to be more of a change in regulation and how small business concerns may be eligible to be 8(a) entities, but not a mass attempt to terminate 8(a) contractors within a month.
Sam: Yeah, they seem to be moving quickly against 8(a). It’s a good point about 8(a) and Ultima. Two thoughts on that: One is, in some ways, I think the 8(a) program was lucky they had the Ultima case, that they made these changes before the administration changed. Many of the things that the administration would have done, the SBA already did in terms of reviewing everybody’s social disadvantage and clearing them based on the removal of the presumption. The second is I’ve been surprised that it’s bled outside of 8(a). The sledgehammer video was just about 8(a), but when the memo comes out, it’s about all small business set-asides. You have SDVOSBs getting these notices from defense agencies to show their limitations on subcontracting. There’s a hearing in the Senate where the witness says we should just end set-asides altogether, that there’s no reason to have these at all. What’s your reaction to that? Is that something you anticipated, and what’s really behind that?
Jayna: I think part of it, maybe I wouldn’t have anticipated back in January 2025, but maybe if you had asked me in October 2025, I think it was more foreseeable. The administration has made a lot of changes to government contracts and grants with a hammer rather than a scalpel. They are looking at things as broadly as possible to trim down and forcing the industry to come back and say, “These are the parts we really need to keep,” as opposed to somebody in the administration going through and figuring out what parts to keep.
Sam: So what do you think is going to happen in the end with the 8(a) program? I’ll just bring up before you answer: I saw an interesting research article this week, discussed somewhat in The New York Times, about the biggest issues the political parties could shift on in order to win more voters. On the Republican side, I think it was gay rights. On the Democratic side, the second most important issue to voters where the Democratic Party is farthest away is small business preferences for minority-owned businesses. Which is a strange issue to be the second most important to median voters. If Democrats are reading that, they’re going to say that seems to be an area we should shift away from. So now you have Republicans who are running the government saying we want to diminish the 8(a) program, and you have Democrats reading surveys showing there’s not really a whole lot of support for preferences for minority-owned or disadvantaged businesses. Where do we go from here with 8(a) in light of that and Students for Fair Admissions?
Jayna: I think one of the things we might see—and it came up on the panel you were on in 2023—is messaging. If Democrats want to keep some of those programs, they can, but they just haven’t provided the public the information about why these programs are good. They just assume everybody is going to believe in them without confirming that. I remember on the panels, you all talked about the fact that this phrase “affirmative action” is used to encompass a number of different things. It was used in the Students for Fair Admissions case to describe what was happening in college admissions. Affirmative action is very different in the labor and employment context, where it was really intended to mean non-discrimination in employment practices. I think it is also different in the government contracts space from the perspective of the 8(a) program and how things were awarded. Most lawyers don’t understand preference programs. If we were to go pick out any lawyer from any other practice area to describe how the government has preferences for socially and economically disadvantaged individuals, they’re probably not going to be able to provide a good explanation for that. If they can’t explain it, how is somebody in rural Missouri, where I’m from, going to understand the value and the lack of harm to them? I just don’t think they are unless there’s better messaging around it.
Sam: That’s a really good point. If people aren’t understanding it—or even if they do understand it, maybe it’s not something they support—what’s the point of understanding all of it? One item I wanted to get clarity on: the SBA issued this memo saying we’re going to try to open up the 8(a) program to job creators. They said white men specifically have been discriminated against, potentially victims of DEI, and were going to review their social disadvantage. Just to be clear, you can’t also create a presumption for white men, right? If you had a presumption for Black Americans, Asian Americans, Hispanic Americans, and that’s unconstitutional, you can’t have a presumption on the other side, right?
Jayna: Yes. What’s interesting is we’ve seen, even in the labor and employment context, a move away from certain types of bias in what cases the labor and employment world is concerned about. Some of the changes from the administration are going to make those claims harder to bring. But also, folks thought there might be a flood of cases from white males alleging discrimination, and there has not been. We are more than a year into this administration with these significant executive orders attempting to lead white men into bringing certain types of discrimination claims, and we have not seen a flood of them by any means. It’ll be interesting to see how all of that plays out.
Updates on University Admissions Post-Decision
Sam: That is interesting. Just on the university side, going back to the original point of the case in college admissions, what’s happened there in the last three years?
Jayna: I think it depends on the university. Some universities have seen a decrease in the diversity of their incoming students, and other universities have seen an increase. What is it that you’ve been seeing from your side of things?
Sam: I just saw something that in the really selective universities, as expected, minority enrollment has decreased. I think there’s a challenge against Duke because that has not happened at Duke for whatever reason, but in the next tier of state universities, it has actually increased. Maybe the thought is that those students are just moving down a tier, so they’ve seen more diversity at the state colleges, for example.
Jayna: Yeah, and what’s going to be interesting is to see how people interpret the impact of Students for Fair Admissions when universities have been struggling with enrollment for a while. Universities wholesale have been having struggles with enrollment and looking at ways to increase recruitment generally. Even if there are impacts that seem chronologically tied to Students for Fair Admissions, I don’t know that we’d be able to say this is a cause and effect, given the changing landscape of who’s applying to college generally, and who’s taking the route of more trade and technical schools. Even with the advent of AI now, that’s going to impact who’s choosing certain colleges and career paths right now. Who’s to say that’s not the impact on college admissions, versus Students for Fair Admissions? People are going to consistently look at the statistics to say this is happening or has not happened, but I think it’s going to be so hard to look at it in a black box.
Sam: As my teenagers say, “Dad, is college a scam? You pay a lot of money. Is it actually worth it?” We’ll see.
Estate Planning and Ownership Issues for Government Contractors
Sam: Just switching gears entirely: I know Thompson Coburn is an active law firm for estate planning. I took a couple of estate planning courses in law school, but I’ve only written a handful of wills, mostly just from books. What kind of clients do you have in estate planning? Outside of government contracting, what is the typical advice a lawyer would give to someone coming in for a will or a trust and estate?
Jayna: I did not even take any estate planning classes. The only trust and estate coursework I did was studying for the bar, because I think trusts and estates decisions are closely tied to taxation and an individual’s tax situation. I also did not take federal income tax and only learned that for the bar. I say that because there are a lot of trusts and estates decisions made based on understandings that don’t necessarily tie in with the rest of a person’s life. Sometimes, you go to a trusts and estates lawyer, tell them what you want, and that person isn’t somebody you call up every single day for problems. Whereas, Sam, you have small business clients who call you pretty consistently when they run into issues with the operation of their business. My husband and I use an attorney ourselves for our estate planning, and it’s fairly common for people to reach out to estate planning attorneys to get advice on what’s best for their situation. We could go online, pull down some kind of will, sign it, and say, “Okay, we’ve got a document that says what we want to happen to our assets and our child, we’re done.” A trusts and estates attorney is going to walk you through what’s best for your situation, what you truly want, and how you can get there in a way that gives you and anyone receiving your assets the least tax impact. That’s usually where that advice is looking.
Sam: Okay, so you’re looking at it to try to lessen taxation. You want the assets to go to your heirs without them getting a big tax hit. What happens for government contractors? How do you get involved, and what are the big pitfalls there?
Jayna: I’ve become involved through early-stage planning for government contractor owners when they are working with their trusts and estates planners or an accountant. Sometimes they’ll bring me in to help with corporate documents, and these issues come up. Unfortunately, we’ve also seen situations where an owner of a small business passes away during the time period when they have active contracts. That’s another situation where we become involved and help them address these issues because the SBA has regulations on what happens to contracts and certifications when someone dies. Or how much ownership somebody must have for the entity to be deemed a WOSB, an 8(a), an SDVOSB, or any of the other similar types of programs.
Sam: We have a lot of cases in the veteran-owned space on these sort of issues, trusts in particular. There’s a case about tenants by the entirety that came out recently. I want to clarify that the reason they’re in the veteran-owned program is that you can appeal a decline straight to the Office of Hearings and Appeals. You can’t do that for WOSB or HUBZone. You can do it for 8(a), but that happens less often because people spend a lot more time on their 8(a) applications, whereas with veteran-owned, it’s hard to do that. What have you been seeing in these cases on the veteran-owned side?
Jayna: It’s interesting you point that out, because oftentimes we’ll look at what decisions are out there when counseling clients on ownership questions, regardless of the program type, to see how the SBA is going to look at things. Because the SBA regulations require contractors to be owned directly by an individual, how ownership is set up becomes really relevant. What we see is how the SBA has interpreted whether or not a trust is an acceptable way to have direct ownership, because a trust is not direct ownership. If a trust owns Small Biz Co., it’s not directly owned by Jayna Rust; it’s owned by my trust. The SBA has said they will accept a trust, but there are really three essential requirements for it to meet that element of direct ownership. The grantor, the trustee, and the beneficiary all have to be the same individual, and it needs to be a revocable trust. That is something a lot of trusts and estates planners can’t wrap their head around because it doesn’t make as much sense from an estate planning perspective.
Sam: That probably has tax consequences as well.
The Complexities of Government Contract Claims
Sam: Before we wrap up, I wanted to ask you about your course at GW. You teach a course on claims. What are your biggest practice points for students in the course, and what’s the difference between getting into government contracting on the claims side versus, say, bid protests or small business? What makes a good claims lawyer?
Jayna: I think one of the things that makes a good claims lawyer is someone who loves digging into the facts and really digging into the documents. Something that surprises students—even though the class I teach has a lot of JD students, it also has a lot of LLM students who are practicing lawyers getting a degree in government contracts—is how fact-heavy claims are compared to protests. Protests are very document-heavy, mostly based on what the solicitation or evaluation documents said, and whether there is support for the agency’s decision. On the claims side, it’s a lot of what people really knew, what was happening on the ground, and having to maybe even go out and take a look at the hole on the ground to see if that was truly a differing site condition. The students who really dig into the facts, enjoy them, and enjoy getting to know what’s happening tend to do really well. But there’s also the need to have a broader ability to issue-spot on the claims side, because the client is coming to you with all these problems. There’s a bigger pool of arguments about whether things are right, but also knowing what you get even if you are right. Okay, I win on this argument legally, but do I get more money? Do I get more time? If all I get is more time, is that really going to be enough for my goals?
Sam: That sounds more like being a real lawyer instead of what we do. Jayna, how do people find you?
Jayna: They can find me online. I’m on LinkedIn if they want to reach out—just let me know how you found me. They can also find my information on the firm’s bio.
Sam: Wonderful. Jayna, thanks so much for joining us. Thanks everybody.
With 20 years of Federal legal experience, Sam Le counsels small businesses through government contracting matters, including bid protests, contract compliance, small business certifications, and procurement disputes. Sam obtained his law degree from the University of Virginia and formerly served as SBA’s director of procurement policy. His website is www.samlelaw.com.
This video is for informational purposes only and does not constitute legal advice.
