With race now outlawed for redistricting and college admissions, federal procurement may be next

The Supreme Court’s two landmark rulings outlawing the use of race in most cases for congressional redistricting and college admissions have prompted Congress to think about another target: federal contracting and grant making.

Several federal agencies for years have created loan, contracting and grant programs that use racial or ethnic preferences to help choose recipients for taxpayer money, including the Commerce Department’s Minority Business Development Agency and a new initiative the Biden administration created in 2023 that promised to harness more contracts through the Small Business Administration and the General Services Administration for minority-owned businesses in an effort to create “equity” in government procurement.

The MBDA, for instance, boasted on its Website that it helped secure $3.8 billion in contracts in 2023 for minority-owned businesses as part of its “commitment to fostering growth for America's minority business enterprises, fueled by our mission to create an economy of equal opportunity.” 

But the high court’s rulings on college admissions in 2023 and redistricting in last week’s Louisiana case – along with President Donald Trump’s executive order instructing all agencies to rid the government of Diversity, Equity and Inclusion policies – have some lawmakers thinking it’s time to rid racial preferences and affirmative action programs entirely from the federal code.

“These DEI people are going to be back in a heartbeat if a Democrat ever takes over the presidency. Right now, these rules are in statute. President Trump is thankfully ignoring the statute. I would say, is doing the constitutional thing. But we want to make this a permanent thing,” Rep. Glenn Grothman, R-Wis., told the Just the News, No Noise television show Monday night.

Grothman teamed with Sen. Mike Lee, R-Utah, to introduce late last month the Ending Discrimination in Government Contracting Act to outlaw federal agencies from awarding contracts based on recipients’ race or sex. 

Grothman said the law is designed to ensure the only questions federal procurement officers ask before awarding contracts are simply, “Who does the job best? Who does the job at the lowest bid?”

The Wisconsin lawmaker, who chairs the House Oversight subcommittee on health care and financial services, said there is an issue beyond constitutionality. Racial preference contracts, he said, cost taxpayers more as agencies and contractors pay premiums to lure minority-owned partners to secure business.

“Let me tell you a story that hasn't been out there. I have had people, three different people who would know, in my district, who talk about the federal government overpaying on products, overpaying on services,” he said. “A 30% bonus is not unusual on subcontracting for the right race or the right gender, and that's got to end.”

Former White House press secretary Sean Spicer, whose new book examines the impact of the Trump 2.0 agenda, believes the courts may be ripe for a legal challenge on federal and state contracts that set racial preferences. 

“At some point, you have to ask yourself: Do those remedies still need to exist?,” Spicer told the John Solomon Reports podcast. “In other words, are we now committing the same, are we creating the same problem that we sought to address? Which is so, if we are being racist initially. Are we still being racist by now doing this kind of stuff? So I tend to believe that, yes, the answer is how does somebody not say I can't get a federal contract because the pure color of my skin.”

George Washington University law professor Jonathan Turley agrees. 

"We are moving into a new era where racial criteria and discrimination are neither rationalized nor tolerated," he wrote on X this week. "There is now reason to hope that we will indeed, as Chief Justice Roberts previously observed, end 'this sordid business, this divvying us up by race."

The Trump Justice Department is already setting legal precedent, suing to overturn DEI-infused programs that discriminate. Last month, IBM agreed to pay a $17 million penalty to settle allegations it violated the False Claims Act with allegedly discriminatory employment practices tied to DEI programs.

Assistant Attorney General Harmeet Dhillon told Just the News more anti-DEI actions are likely across the country.

“I have threatened jurisdictions over that very issue. We have sued jurisdictions that have race-based loan forgiveness programs and allocation of assets,” Dhillon said. “I think Asheville, North Carolina, was trying to pass a package of race-based benefits for people of lower income, that preferred minorities over whites, and that's illegal. And I tweeted about it, and they immediately withdrew their program. But other jurisdictions have been tougher nuts to crack. I mean, Rhode Island has a loan forgiveness program that was for minorities only. That's illegal, and you know, we're negotiating with them over that, after suing them.

“You know hiring cannot be done on the basis of race in our country. And so again, what the president has done is really extraordinary,” she said. “He’s given us a mandate to wipe out DEI and that includes racist affirmative action programs throughout the country, wherever the federal government touches them. And that includes just about everybody, because just about everybody gets federal funding.”

Grothman said his legislation is designed to resolve the issue in a post-Trump world and keep future administrations from returning to such discrimination.

The legislation he and Lee introduced would:

• Eliminate quotas, mandates and programs that provide government contracting opportunities to companies based on the race and/or sex of the company’s owner;
• Ban certain federal DEI programs like the Disadvantaged Business Enterprise and the Minority Business Development Act of 2021;
• Repeal DEI preferences for Department of Transportation grants;
• Eliminate discriminatory federal reporting requirements on small businesses;
• Mandate federal agencies rescind regulations requiring preference to contractors based on their race or sex and ban them from ever being reinstituted.