An information technology contractor has asked the U.S. Supreme Court to review a D.C. Circuit decision upholding the U.S. Small Business Administration‘s 8(a) program for disadvantaged small businesses, arguing the panel’s majority failed to recognize that the program involves racial classification that requires strict scrutiny.
Rothe Development Inc., a nonminority-owned small business that mostly bids on federal defense contracts, filed a petition for a writ of certiorari after the D.C. Circuit denied panel and full-body rehearings of its split September opinion. In a 2-1 decision, a three-judge panel rejected Rothe’s challenge to the law underpinning the 8(a) program, ruling that the program was not unconstitutionally based on race.
However, in Rothe’s petition, filed on April 13, the contractor argued that until the panel issued its majority decision, Congress, the federal government and the courts had all recognized that the statutory provisions of the program use race-conscious means “to distribute burdens and benefits.” The panel’s assertion that the law implementing the program is race-neutral on its face ignores the plain language of the statute, Rothe said.
“In sum, the statutory provisions of the Section 8(a) program contain a paradigmatic racial classification because they distribute burdens and benefits on the basis of race,” Rothe said. “Because the panel majority’s contrary conclusion and failure to apply strict scrutiny are irreconcilable with the plain language of the provisions and this court’s precedents, review is warranted.”
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The program, known as 8(a) after the section of the Small Business Act in which it appears, gives a preference in government contracting to small businesses owned by “socially and economically disadvantaged” individuals. The law defines the socially disadvantaged as people “who have been subjected to racial or ethnic prejudice or cultural bias because of their identity as a member of a group without regard to their individual qualities.”
