Challenges for the 8(a) Program

The diversity rationale as it applies to higher education has garnered some criticism. Critics argue that the rationale fails to “advance racial justice” and “legitimizes admissions policies that favor the privileged.”372 _{For example,}

critics argue that the diversity rationale ignores the underlying issues of racial hostility and bias.373 _{Whereas evidence-based studies and data that support}

remedial action shine a light on discrimination, the diversity justification glosses over the real problems and allows institutions to increase minority representation without addressing systemic racial issues.374

This criticism ignores affirmative action jurisprudence that requires program officials to monitor the need for race-conscious programs. Under Grutter, programs must be monitored and reviewed to ensure they are necessary.375 _Such

monitoring requires an awareness of discriminatory practices and their effects on institutions employing affirmative action programs. If systemic issues are ignored, the need for the program cannot be established. The criticism also ignores the challenges some institutions face in justifying remedial affirmative action programs with evidence-based studies. Discrimination can be difficult to prove, even in populations with racial disparities.376 _{Institutions with limited}

resources may have difficulty conducting extensive race studies to support remedial programs, or may not have the expertise to conduct empirical race studies.

In any case, statistical studies alone do not alleviate discrimination. History has shown that such an undertaking requires the support of empowered community leaders in prominent positions, leaders that are produced by the

370. See, e.g., DynaLantic, 885 F. Supp. 2d at 253 (citing congressional studies on

discrimination in government contracting).

371. See, e.g., id. at 253–54.

372. See Osamudia R. James, White Like Me: The Negative Impact of the Diversity Rationale on White Identity Formation, 89N.Y.U.L.REV.425, 450 (2014).

373. See id.

374. See Derrick Bell, Diversity’s Distractions, 103COLUM.L.REV.1622, 1627 (2003).

375. See Grutter v. Bollinger, 539 U.S. 306, 342 (2003).

affirmative action programs at issue in this article.377 _{Programs like 8(a) and}

Texas’s Top Ten Program help create a diverse group of leaders that is capable and motivated to challenge systemic bias and that can make deep and impactful policy changes.

The government contracting context offers some unique challenges to the application of the diversity justification. For example, a number of contracts do not require military personnel and contractors to work in close proximity. For example, a contract for radiology services may permit a doctor to review radiographs remotely without interacting with military personnel. Contracts for goods, such as military uniforms, may require very little interaction between the manufacturer and military units.378 _{In these examples, military members and}

contractors work independently, so the diversity rationale carries less weight. But while contractors can sometimes support troops from afar, there is no doubt that the DOD often demands their physical presence. The military requires a significant number of on-site service contractors to support operations in Iraq, Afghanistan, and at other bases and ports around the world.379 _{In fact,}

the DOD provides contract support to six unified combatant commands, including U.S. Northern Command (NORTHCOM), U.S. African Command (AFRICOM), U.S. Central Command (CENTCOM), U.S. European Command (EUCOM), U.S. Pacific Command (PACOM), and U.S. Southern Command (SOUTHCOM).380 _{The distribution of work performed under the DOD}

contracts in these locations differs from year to year.381 _{And, while not all goods}

and service contracts support the military on location, many of the military’s unique functions cannot be performed without close, on-site interaction.382

It can be argued that the 8(a) program does not fulfill its minority business development objectives because the program only requires a showing that business owners are disadvantaged, not the firm’s employees.383 _{In other words,}

8(a) firms have little or no impact on diversity in the defense community because only the owners are minorities, not the employees. This is essentially a critique of the narrow tailoring requirement for affirmative action programs.

377. See Grutter, 539 U.S. at 330–32 (discussing the importance of racial diversity among

leaders in the military and in the business sector).

378. The military acquires many commercially available goods with commercial off-the-shelf purchases, or COTS contracts. See 41 U.S.C. § 104 (2012). COTS contracts are used to purchase standardized commercial products that do not require military customization, and that do not designate a place of contract performance. See id.

379. Cf. HOW AND WHERE DODSPENDS ITS CONTRACTING DOLLARS, supra note 266, at 13.

380. See id. at 12. 381. See, e.g., id. at 13–14.

382. See, e.g., id. at 14 (describing the significant presence of overseas contracts that remain

despite the U.S. drawdown in Iraq and Afghanistan).

As the Court stated in Fisher II, the relatively minor impact of the program is “a hallmark of narrow tailoring, not evidence of unconstitutionality.”384 _The

8(a) program accounted for less than five percent of DOD contracts for fiscal year 2015.385 _{Though relatively small, the program adds to the diversity of the}

defense contracting community. That the program relies on the diversity of business owners rather their employees does not make the program ineffective. Though the program is small, there are opportunities for 8(a) firms to multiply their footprint. For example, minority-owned firms may be more likely to hire minority employees due to the absence of discriminatory hiring practices.386

Also, contracting regulations provide that 8(a) firms may be owned by groups of minorities rather than single owners.387 _{Group ownership can increase}

minority participation without necessarily expanding the program. Finally, mentor-protégé programs allow 8(a) firms to partner with larger established firms to obtain management and technical assistance, investment and loan opportunities, and to cooperate in joint venture projects including subcontracts awarded by the mentor.388 _{These relationships expand the reach of minority}

firms by allowing them to participate in markets that they could not otherwise participate in as individuals.