A new Virginia law, passed strictly along party lines, is poised to dramatically alter how the state distributes funds for government contracts. The legislation mandates state agencies to actively consider the race and sex of business owners when awarding discretionary funds, a move experts predict will face significant legal challenges.
The core of the law, officially titled the Small SWAM Business Procurement Enhancement Program act, requires a phased increase in contracts awarded to small, women-owned, and minority-owned (SWAM) businesses. Agencies must boost their utilization of these businesses by three percent annually, aiming for a substantial 42-percent target. If reaching this goal proves impossible, they are obligated to establish and pursue achievable, yet measurable, increases.
Specifically, the bill dictates that all purchases ranging from $10,000 to $200,000 must be exclusively reserved for SWAM businesses. This directive, championed by Del. Jeion Ward, represents a significant shift in procurement practices within the state.
As the bill nears Governor Abigail Spanberger’s desk, legal observers are already raising concerns about its constitutionality. Kyle Brosnan, of the Oversight Project, argues the law represents “clearly intentional discrimination against White men,” signaling a radical ideological direction for Virginia’s government.
The legal foundation for these concerns stems from recent Supreme Court rulings, notably the decisions regarding affirmative action in higher education at Harvard and UNC. Former federal prosecutor Zach Smith points out the Court explicitly prohibited using race as a determining factor, and that logic is likely to extend to government contracting programs.
The Supreme Court’s stance on quotas is also critical. Prior rulings have deemed such systems “impermissible,” suggesting the Virginia law could ignite legal battles from business owners who feel unfairly disadvantaged. Arguments against the law are expected to center on Fourteenth Amendment grounds, guaranteeing equal protection under the law.
Justice Clarence Thomas, in his concurrence during the affirmative action case, powerfully articulated the principle of equal treatment, stating the country must strive to live up to its founding ideal that “all men are created equal…and must be treated equally before the law.” This sentiment underscores the legal challenges facing the Virginia legislation.
Beyond the potential for lawsuits, the bill allocates $1 million in taxpayer funds for system updates, staffing, and reporting – resources critics argue are intended to “institutionalize discrimination.” A provision allowing SWAM businesses to win contracts even with bids up to 5% higher than competitors further fuels this criticism.
Critics highlight a section requiring the Department of Small Business and Supplier Diversity to conduct regular “disparity studies,” which they interpret as an effort to actively reduce the number of government contracts awarded to White males. The law’s implications are sparking debate about the balance between promoting diversity and upholding principles of equal opportunity.
The unfolding situation raises questions about the direction of governance in Virginia and the potential for protracted legal conflict over the state’s new procurement policies. The governor’s decision on whether to sign the bill will undoubtedly set the stage for the next chapter in this contentious debate.
