Federal Circuit: Discrimination? Prove It.

A Washington Post columnist recently wrote about a ruling we blogged about last month. The U.S. Court of Appeals for the Federal Circuit voided a law that established a five percent quota to award defense contracts to so-called disadvantaged small business owners. The decision may invalidate 8(a) of the Small Business Act contracting programs. (Source)

“The impact of the decision is unclear; the court’s focus on an old Pentagon rule to decide the case created uncertainty about whether the set-aside remains,” writes Joe Davidson. “But if the panel’s ruling stands, the implications for minority-owned companies that received almost $15 billion in fiscal year 2006 in Defense Department contracts could alter a long-standing program that allowed under-represented groups access to lucrative government contracts.”

Strike another blow for racial spoils.

So-called minority-owned businesses will have to get by on quality of service and reputation. Davidson believes businesses owned by racial minorities should get preferential treatment to “right a long series of wrongs that have accumulated over generations.” The problem is the people who receive government set-asides don’t have any legal claims to reparations-type of compensation, nor do the people penalized for being white bear any legal responsibility for discriminatory actions of the past.

But that’s my contention, not the Federal Circuit’s. (If I were queen of the world!) Davidson notes that Congress didn’t present strong evidence to show that the Department of Defense was a “passive participant in pervasive, nationwide racial discrimination” to justify preferential treatment to right racial wrongs of the past.

I would be eager — eager — to see evidence that minority-owned businesses didn’t receive certain contracts because the businesses are owned by blacks or women, and not because they’re not competitive. Good luck with all that.