IN DIRECT RESPONSE TO H.R. 1842
Words like “using the Small Business Administration entrepreneurship development programs as a catalyst for job creation for fiscal years 2009 and 2010”, as found in H.R. 1842 are pretty, and good sounding. But, we need to “get back to basics”. We need to call them what they are, and get to doing what existing laws already call for. We need to MONITOR and ENFORCE the laws currently on the books. And, we need to call “Minority Development Programs” just that. The same is true for “Woman-Owned Business Programs.”
Either Minorities and Women are discriminated against because of their race or gender, or they are not. WE know they are. Others need to fess up to it. We either meet the standards of Adarand, or we don’t. If we meet the standards of Adarand, we don’t have to worry about Rothe.
That theme is gonna be the basic one for the upcoming Spring Session of “Wilfong’s School for Advanced Small Business Studies”. We’re gonna cut through the gobbled-gook and get to the nitty-gritty. We’re gonna call them like we see them. And, we’re gonna demand Change.
We’re gonna re-establish the theme that “Small business is the engine that drives America.” As such small business establishes the monster share of new jobs created in this country. Realizing that, one understands that if you take care of small business, you take care of creating jobs. This is true in the minority community. This is true in the general community.
So, what’s the problem? Well, we kinda, sorta, lost our way. We got confused and nonplussed by The Adarand Decision, back in the mid-90s. In trying to dodge the bullets, we got away from our mission. We forgot the things we established back in 1978, when Congress enacted Public Law 95-507. We sought to go “race-neutral” in fear that The Adarand Decision would embolden those who sought to “do away with programs designed to assist Minorities”.
They can try all they want to. But, they will not succeed, not IF we’re able to establish that racial discrimination is still alive in America. If we can’t establish that fact, then we can’t have “race-based” programs to ameliorate the condition. If it is not a fact, then we don’t deserve to have the programs.
Let’s look at Adarand, and what it said. In essence Adarand said, “Look, we hear you when you say ya’ll are being discriminated against, and that discrimination is causing you not to be all that you can be, as guaranteed by the United Constitution. But, you need to establish that fact, and support the fact that this denial of your right to equal protection under the law is a compelling reason for the United States Government to provide remedial measures to correct the situation”.
DUH…If we can’t do that, then perhaps we don’t deserve the programs.
Change the Wilfong language above to legalese and see if your interpretation is any different. Basically, the Supreme Court said that strict scrutiny shall apply to those programs which provide for the use of racial or ethnic criteria as factors in determining who shall benefit from the awarding of contracts. The Court said such programs would satisfy “strict scrutiny”, if they serve a “compelling interest” and are “narrowly tailored” to the achievement of that interest.
Shortly after the Adarand decision, then, President Clinton vowed “to fight to preserve federal affirmative action programs that give preferences to Blacks, Latinos and other minorities..”. “Despite great progress, discrimination and exclusion on the basis of race and gender are still facts of life in America. I have always believed that affirmative action is needed to remedy discrimination and to create a more inclusive society.” Right on, Mr. President, we shouted. But, then he did a two-step. He yielded to the darker side of our country. And, he started looking for “race-neutral” stuff.
Contrary to Clinton’s intimation, the Court did not find that “affirmative action is not needed”. The Court just decreed that, as to minority business programs, it must be “narrowly tailored”, and established certain “predicate actions” that must be taken. Justice Sandra Day O’Connor, and the rest of the majority, required that the “strict scrutiny” standard be applied to any such programs. The Court even found that, when race-based action is necessary to further a compelling interest, it is perfectly within constitutional constraints, if it satisfies the “narrow tailoring” test, the Court has set out in previous cases. Fair enough, we can handle that.
Justice Sandra Day O’Connor said “The unhappy persistence of both the practice and the lingering effects of racial discrimination against minority groups in this country is an unfortunate reality, and the government is not disqualified from acting in response to it.” It would have pleased us more if she had used that awareness to find it in herself to vote for us, rather than just recognizing it, and throwing the ball back into someone else’s court. But, she left the door ajar. Our elected representatives could have kicked that door wide open.
Quit playing with “race-neutral” wordage and call it like it is. Racial discrimination is still alive in America. We need to surround it, and cut its head off. We need to quit dodging the use of, and emphasize the use of language, which describes what we’re hoping to accomplish. MSB/COB- Minority Small Business/Capital Ownership Development is what P.L. 95-507 was all about. That is what the section of SBA that dealt was called, for many, many years. That’s what its name ought be changed back to.
The purpose of the 8(a) Program was to promote the competitive viability of firms owned by socially and economically disadvantaged individuals through the provision of contractual, financial and technical assistance as may be necessary. We used to do that at SBA. We knew what our mission was. And, we pursued it vigilantly.
You SBAers of today, get back to that mission. As stated above, the Supreme Court established in Adarand that race-conscious methods may be employed as long as the program in which they are used, can stand the strict scrutiny test and are based upon a compelling interest of the Government. The United States Congress did extensive fact-finding and predicate study work prior to passing Public Law 95-507. We were fortunate to have given testimony and submitted evidence in those proceedings. It was part of our finest hours.
Will these things be talked about on The Hour…..heck, yes…
Mr. Hank Wilfong as an editorial writer for the 8-PAC Eagle. Mr. Wilfong is one of the most prolific and impassioned independent political minds working today. The President of the National Association of Small Disadvantaged Businesses (NASDB), he is a charismatic and articulate speaker, not afraid to use the vernacular that sparked a movement by disadvantaged small business some 20+ years ago. Hank Former is a former Appointee of Governor and President Ronald Reagan; Member, Bush-Cheney Transition Team-Small Business Advisory Group; and, Co-Chair, Obama Unity Committee/Black Republicans for Obama.
THE WILFONG HOUR