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A Virginia state bill passed along party lines directing state agencies to consider the race and sex of small businesses’ ownership when distributing discretionary funds for procurement and contracts is likely to face major legal headwinds, experts told Fox News Digital.
The Small SWAM Business Procurement Enhancement Program Act “provides that executive branch agencies and covered institutions are required to increase their small SWAM business utilization rates by three percent per year until reaching the 42-percent target or, if unable to do so, to implement achievable goals to increase their utilization rates,” according to its text.
SWAM stands for small, women-owned and minority-owned.
Purchases between $10,000 and $200,000 must be set aside to be awarded to SWAM businesses as well, according to the text of the bill drafted by Delegate Jeion Ward, D-Hampton.
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As the bill approaches Democrat Gov. Abigail Spanberger’s desk, Oversight Project Vice President of Legal Kyle Brosnan told Fox News Digital it appears par for the course for the way Richmond is moving.
Brosnan said the bill constitutes “clearly intentional discrimination against White men.”
“Since reclaiming total control of state government, Virginia Democrats have shown their true colors as nothing short of radical ideologues,” Brosnan said.
“By setting race and sex quotas for 42% of the state discretionary spending on government contracts, Gov. Spanberger and her far left enablers in Richmond are showing their true colors as radicals.”
Zack Smith, a former federal prosecutor for the Northern District of Florida, added that whenever the government proposes to treat people differently based on race and gender, it is unconstitutional.
“I think we saw the Supreme Court speak explicitly to this with its Harvard and UNC decisions banning the use of race in admissions in higher education,” he said.
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“As a result of that Students for Fair Admissions decision, we’ve seen some federal courts apply that same logic to other federal government programs that seek to prioritize minority-owned businesses (that) are treating people differently based on their race, and so I would certainly think the same logic would apply to this state law action as well.”
Chief Justice John Roberts authored the majority opinion in that Supreme Court case, and Justice Clarence Thomas wrote a concurrence in a historic decision ending affirmative action in college admissions.
“While I am painfully aware of the social and economic ravages which have befallen my race and all who suffer discrimination, I hold our enduring hope that this country will live up to its principles [that] all men are created equal … and must be treated equally before the law,” Thomas said at the time.
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Smith said that, even prior to this, the Supreme Court found quotas “impermissible” and that if Spanberger signs the bill there will be business owners who are outraged and will demand accountability.
“I do think there is likely going to be litigation surrounding this because this would involve a federal constitutional issue in addition to other legal claims that may be raised,” Smith said Wednesday.
“This could be brought in federal court,” he said, suggesting arguments against it will fall on 14th Amendment grounds.
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Brosnan agreed, criticizing the bill’s section requiring Virginia taxpayers to fund $1 million for system updates, staffing and reporting to “institutionalize discrimination” in his words.
“It also ‘sets aside’ government contracts of up to $200,000 for women- and minority-owned businesses so long as their bids are no more than 5% higher than the lowest “noncertified” — read ‘White male-owned’— business.
“Did Virginians expect to get this institutionalized wokeism when they voted for the ‘moderate’ governor?”
The conservative outlet The Federalist said the bill instituted “racial rigging” and reported a section of the bill authorizes the director of the Department of Small Business and Supplier Diversity to conduct a “disparity study” every five years, which the outlet said translated to determining how to reduce the number of White males winning government contracts.
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Fox News Digital reached out to Spanberger for an indication whether she will sign the bill. Fox News Digital also reached out to Ward, who is also the chairwoman of the Labor & Commerce Committee on Capitol Square.
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