SBA’s 8(a) Business Development Program is Not Race Based and is Legally Distinguished from DEI Programs

SBA’s 8(a) Program is Not Race Based and Not DEI

·       Statutory Definition of Socially Disadvantaged Individuals—Anyone May Qualify by Demonstrating Disadvantage—Regardless of Race

·       $2 Billion in 8(a) Contracts go Service-Disabled Veterans

·       40% of all 8(a) Contracts go to HUBZones, Women Owned, and Service-Disabled Veterans

·       There is no presumption of racial disadvantage in the statute

·       Any presumption of social disadvantage based on race was written outside the statutory framework in the regulations and those regulations have been removed—it can only be demonstrated by real life individual experiences

·       “Congress affirmatively chose to jettison an express racial presumption that appeared in an earlier version [of the statute].” —Rejecting without question a racial preference

·       If Congress wanted a racial preference, it would have kept racial language—it did not

·       Congress enacted Section 8(a) a generation before congressional racial classifications faced strict scrutiny by courts demonstrating that Congress could have easily used a racial preference and did not

·       On the heels of the enactment of the statute, regulations were put in place that required evaluation on a case-by-case basis for social disadvantage—not a presumption—that is the practice SBA has again adopted—the way Congress intended

SBA’s 8(a) Program with Tribes, Alaska Native Corporations, and Native Hawaiian Organizations, are Based on a Political Relationship

·       Even if SBA’s 8(a) Program were found to be race based, which it is not, Tribes and Alaska Native Corporations (ANCs) are constitutionally distinguishable on a political/government to government basis and not subject to review as race based

·       This distinction has been reaffirmed by Congress, the U.S. Supreme Court, and the U.S. Constitution

·       The decisions of the Supreme Court “leave no doubt that federal legislation with respect to Indian Tribes, although relating to Indians as such, is not based on impermissible racial classifications.” “Congress has the power to regulate Commerce . . . with the Indian Tribes.” U.S. Const. art. I, § 8, cl.3.

·       This carveout exists – even where a law may otherwise be unconstitutional based on racial classifications – because Congress clearly engages its powers to regulate commerce with the tribes with the Constitution providing a separate federal power to do so.

·       The Alaska Native Claims Settlement Act, passed by Congress in 1971, reaffirmed the power of Congress to regulate commerce with the tribes and is as the “mechanism that designates Native Alaskan Corporations as the vehicle used to provide continuing economic benefits in exchange for extinguished Aboriginal land rights”

·       Similarly, Congress amended the Small Business Act to include Native Hawaiian Organizations to be on par with other Indigenous people who lands rights were extinguished

Regardless of any distinguishment, all small businesses work together to promote efficiency, agility, and great products and services by companies the Government can depend upon to deliver in a timely manner. 8(a) is an inclusive program that serves the interests of saving tax payer dollars while delivering solid products.