Catholic University Law Review


Hugh B. McClean


Section 8(a) of the Small Business Act (the ‘‘8(a) program’’) is a federal contracting program that permits the government to award certain contracts to members of designated racial groups that own small businesses. Courts have denied facial challenges to the program, but have upheld challenges alleging the program is unconstitutional as applied to particular industries. As a result, the military is banned from using the program in at least one industry, and inherits significant risk when using the program in other industries. The government has never articulated a diversity rationale to justify the use of race-conscious measures in the military contracting context. Given the Supreme Court’s recent endorsement of the diversity rationale in higher education, the time is ripe to consider the application of this rationale to defense contracting. The way we fight wars has changed dramatically in recent decades. Our national security objectives are dependent on minority representation in the defense contracting industry. By fostering diversity in the defense contracting community, the 8(a) program helps maintain a racially integrated military force that is crucial to achieving our military and national security objectives. The Supreme Court has upheld the diversity rationale for affirmative action in the context of higher education, and this rationale applies equally in the military context.