National Review: Time to End Race and Gender Preferences in Government Contracts
Imagine losing a federal contract — despite submitting the lowest bid and the strongest proposal — because of the color of your skin or your sex. Most Americans would call that discrimination. The Constitution calls it unconstitutional. And yet, for decades, this is exactly what the federal government has been doing: It’s allowed to engage in preferential treatment based on race and gender.
The Ending Discrimination in Government Contracting Act, introduced last week by Senator Mike Lee (R., Utah) and Representative Glenn Grothman (R., Wis.), would finally put a stop to it.
Since the 1970s, the federal government has built an elaborate scaffolding of race- and sex-based contracting preferences. Federal agencies are required to steer contracts toward businesses because of the demographic characteristics of their owners. Programs like the Small Business Administration’s 8(a) Business Development program, the Department of Transportation’s Disadvantaged Business Enterprise initiative, and the now-repealed Minority Business Development Act of 2021 all operate under the assumption that the government may distribute economic opportunity based on immutable characteristics.
The Equal Protection Clause of the Fourteenth Amendment says otherwise. So does basic fairness. A recent survey conducted by Pacific Legal Foundation (PLF), where I work, also suggests that Americans overwhelmingly support the idea of equal treatment under the law.
In 2023, the Supreme Court’s landmark ruling in Students for Fair Admissions v. Harvard made it clear that racial classifications in government-touched programs cannot survive constitutional scrutiny. The court reaffirmed that the equal protection guarantee is not a slogan — it is a mandate. The government may not sort individuals by race and hand out benefits accordingly.
The same constitutional principle that forbids racial preferences in college admissions forbids them in awarding a bridge construction contract. A citizen’s right to be treated as an individual — not as a representative of a racial or gender group — equally applies to awarding government contracts.
Courts have begun to recognize this. PLF and other public interest law firms have brought successful challenges to race-conscious contracting programs in recent years. For example, in Californians for Equal Rights Foundation v. Alameda County, PLF won after the county repealed two race-based contracting programs that required prime contractors to reserve at least 15% of each contract’s value for minority-owned subcontractors. In Ultima Services Corp. v. U.S. Department of Agriculture, in which the Center for Individual Rights (CIR) successfully challenged the constitutionality of the SBA’s Section 8(a) program, which set aside federal contracts for businesses owned by members of certain racial and ethnic groups using a racial presumption of disadvantage in administering the program. PLF has an active case, Earle Asphalt Co. v. New Jersey Turnpike Authority, challenging state-mandated race- and sex-based hiring goals that apply to all public construction projects, including roadways, overpasses, sewer systems, and interstate structures. But litigation is slow, expensive, and piecemeal. It is long past time for Congress to act.
The Ending Discrimination in Government Contracting Act, based on a model bill from PLF, eliminates explicit racial, ethnic, and sex-based contracting preferences across the Small Business Act, the American Rescue Plan, the CARES Act, and numerous other statutes. It prohibits federal agencies from taking race, ethnicity, or sex into consideration when awarding contracts or grants — and prohibits contractors from doing so either.
Critically, the bill does not eliminate support for small businesses generally. It does not remove veteran-owned businesses from the list of preferred contractors. It does not dismantle the HUBZone program, which channels investment into economically distressed communities regardless of owners’ demographic backgrounds. What it does eliminate are the unconstitutional preferences that single people out for advantage or disadvantage based on who they are rather than what they do.
The bill also includes a mandate for federal agencies to rescind any existing regulations or guidance that require race- or sex-conscious contracting within 180 days of the bill’s enactment. Unfortunately, because of how ingrained these preferences have become, it’s not enough to just change the statutes — the regulatory machine built around these programs must be dismantled as well.
This is not just an ideological issue. Race- and sex-based contracting preferences impose tangible costs on real people and real communities. As Representative Grothman noted when introducing the House companion bill, companies in his district have lost contracts despite offering higher quality at lower cost. That is not a minor inefficiency; it is a systemic failure that undermines public trust in government and squanders public resources. These contracts also concern matters of public safety in some cases, for instance, cybersecurity contractors protecting sensitive government networks or defense contractors building military equipment, potentially placing this country’s security at risk.
President Trump’s March 2026 executive order on DEI in federal contracting was an important first step. But executive orders can be reversed by the next administration. Statutes cannot be undone with the stroke of a pen. Congressional action is the only way to ensure that the federal government treats every American equally under the law.
Business owners, after building their companies through hard work and expertise, should not be told by their government that the color of their skin disqualifies them from competing on equal terms. That is not the America the Constitution promises. As the country approaches its 250th anniversary, there is no better time to codify equal treatment by the government into federal law. The Ending Discrimination in Government Contracting Act does exactly that, and the Senate and the House should move swiftly to make it a reality. The Constitution has been waiting long enough.
This op-ed was originally published in National Review on May 7, 2026.
