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Federal appeals court rules law mandating DOD minority contracts unconstitutional

[JURIST] The US Court of Appeals for the Federal Circuit [official website] ruled [opinion, PDF] that a statute [10 U.S.C. § 2231, text] mandating that five percent of Department of Defense (DOD) [official website] contract spending be awarded to minority companies, is unconstitutional. The opinion, written by Chief Judge Paul Michel [official profile] and issued Tuesday, found that the evidential standard of determining who is a minority violated the Equal Protection and Due Process clauses of the Fifth Amendment because it failed to meet the strict scrutiny test. Citing six studies that Congress used to determine who qualified as a minority, the Court determined that there was a lack of “strong-basis in evidence” to effectively show that the DOD had discriminated against minorities in the past.

The statute, enacted in 1986, has been reauthorized by Congress on several occasions, most recently in 2006. The lawsuit, brought by the Rothe Development Corporation [official website], was filed after a DOD contract was awarded to a company owned by two minorities, despite Rothe submitting the lowest bid. The decision by the Court continues a recent trend [JURIST report] moving away from affirmative action initiatives.

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