The Limited Impact of Rothe VII on M/W/DBE Programs

10 February 2010
By Dr. Jon Wainwright et al.

In this paper, NERA Senior Vice President Dr. Jon Wainwright and his co-author examine the impact of Rothe Development Corporation v. US Department of Defense -- in which the Federal Circuit Court of Appeals struck down the Department of Defense' (DOD) Program for Small Disadvantaged Businesses (SDBs) -- on minority/women/disadvantaged business enterprises (M/W/DBEs). Some anti-affirmative action advocates have tried to argue that this decision renders all state and local programs based upon disparity studies per se "constitutionally [un]sound," and have attempted to intimidate agencies into abandoning affirmative action programs. The authors argue that Rothe VII does not suggest, let alone require, that state and local governments unilaterally dismantle their M/W/DBE programs, but that agencies seeking to meet strict constitutional scrutiny should commission studies based on sound science and conducted by qualified experts, and then make their case to the court if challenged.

This paper has been published in the February 2010 issue of Contract Management magazine.