The US Department of Agriculture (USDA) and the Small Business Administration (SBA) have a problem. The Government can offer preferred contracting to minority groups, but it must demonstrate a compelling interest.
It needs to provide evidence of the need and show how the remedial action addresses that need and then set and keep track of the goals and whether the contracting addressed the goals set.
Neither the USDA nor the SBA met any of those requirements (reformatted).
Defendants [USDA and SBA] assert that their use of the rebuttable presumption in the 8(a) program is to remedy the effects of past racial discrimination in federal contracting. But Defendant USDA admits it does not maintain goals for the 8(a) program. And Defendant SBA admits that it does not require agencies to have goals for the 8(a) program. Defendants also do not examine whether any racial group is underrepresented in a particular industry relevant to a specific contract in the 8(a) program.
Without stated goals for the 8(a) program or an understanding of whether certain minorities are underrepresented in a particular industry, Defendants cannot measure the utility of the rebuttable presumption in remedying the effects of past racial discrimination. In such circumstances, Defendants’ use of the rebuttable presumption “cannot be subjected to meaningful judicial review.”
The lack of any stated goals for Defendants’ continued use of the rebuttable presumption does not support Defendants’ stated interest in “remediating specific, identified instances of past discrimination[.]”If the rebuttable presumption were a tool to remediate specific instances of past discrimination, Defendants should be able to tie the use of that presumption to a goal within the 8(a) program.
These Federal Agencies were handing out contracts to minority business owners without determining if they were in any way socially or economically disadvantaged as the result of “identified instances of past discrimination that violated the Constitution or a statute.”
Neither the USDA nor the SBA determined the nature of the discrimination, how and what could be done to alleviate it, or how to measure success or failure. They just handed contracts to minorities they identified them as minorities which, absent all other factors, is discriminatory.
And it’s their own damn fault. They just had to do the work, but much of the bureaucratic culture is blinkered by progressive newspeak. Brown people are disadvantaged, so let’s give them some money, be it guilt, concern, disadvantage or vote-buying, and that got me thinking. With all this talk of reparations, given the citations in this decision, won’t states have to meet the same strict scrutiny before they can hand out tax dollars to anyone just because they are black?
And has Ultima vs. Dept of Agriculture – which references SCOTUS’s recent affirmative action decisions – just put the entire Federal hand-out machine on notice with regard to race-based everything?
And what are Democrats going to do aside from lose their minds?
