Is is right to discriminate against minorities because of their race? Of course not. But a law favoring minorities has been discriminating against small businesses owned by those not “socially and economically disadvantaged” since 1986. This may have come to and end with a Federal Appeals Court decision handed down on the same day Obama was elected president.
In Rothe Development v. Dep’t of Defense and Dep’t of the Air Force the United States Circuit Court for the Federal Circuit held that Congress lacked strong enough proof of pervasive racial discrimination when it enacted the contracting law (10 U.S.C. § 2323) (“Contracting Law”) giving preferential status to businesses owned and controlled by “disadvantaged individuals”. Accordingly, it declared the Contracting Law unconstitutional as a violation of equal protection guarantees and halted any further application of this law.Rothe Development v. Dep’t of Defense and Dep’t of the Air Force, No. 2008-1017 (Fed. Cir. Nov. 4, 2008).
The decision was issued on Election Day so it hasn’t received much attention, but it could mean the end of similar programs at all levels of government. I thought it was interesting the decision didn’t find reverse discrimination unconstitutional, only that the “proof” Congress relied upon to justify unequal protection under the law wasn’t good enough. I’m not sure how the court could require real proof of pervasive discrimination when they themselves concluded without citing any evidence at all that “Undoubtedly, some state and local contractors have engaged in discrimination.” Undoubtedly, some drivers run red lights, but should we fine everyone up front?
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