Rothe Development, Inc. v. Department of Defense
Section 8(a) of the Small Business Act allows the Small Business Administration to set aside government contracts for “socially and economically disadvantaged” small business owners. The SBA considers a person to be “socially disadvantaged” if he or she has suffered prejudice on the basis of race. The Act does not constrain or guide the SBA’s use of race to designate individuals as socially disadvantaged. The SBA also enjoys broad authority to decide which industries, government departments, and locations may employ racial classifications. The Small Business Administration identifies which races enjoy favored access to contracts and then decides when and how to use racial preferences across the vast array of goods and services purchased by the federal government. As such, the Act creates a racial preference regime that violates the Equal Protection Clause. Moreover, by giving the Small Business Administration almost unlimited discretion to discriminate based on race, the Small Business Act violates the separation of powers. PLF supports Rothe’s petition to the Supreme Court to review the constitutionality of this program.
Rothe Development is a computer services firm based in San Antonio, Texas, that regularly bids on Department of Defense contracts. Because it is not a “socially disadvantaged” business, the company is prohibited from bidding on numerous DOD contracts that are set aside for such businesses under the Section 8(a) program. The government’s refusal to allow Rothe to compete on an equal footing with minority-owned businesses violates the Equal Protection Clause. The district court upheld the program and a split panel of the District of Columbia Circuit Court of Appeals affirmed. Circuit Judge Henderson dissented, however, because the SBA interprets the statute as mandating that an individual’s membership in certain racial groups automatically constitutes “social disadvantage.” These preferred firms are eligible for billions of dollars’ worth of government contracts.