In an earlier essay I argued that the 8(a) program began as an act of moral imagination, and I closed on an admission: that the honest next step was to stop reflecting and start advocating, even though I did not yet know what that would look like. This is what it looks like. House Strategies Group submitted a formal comment on the Small Business Administration's proposed rule to remove the 8(a) program's rebuttable presumption of social disadvantage. The full document is linked below. What follows is the same argument in plainer terms, and why I put my name on it.
The Question the Rule Skips
I do not ask the SBA to do something it cannot. In Ultima Services Corp. v. USDA, a federal court held that the agency may not presume disadvantage on the basis of race, the Department of Justice has declined to defend the presumption, and the SBA has to conform its rules. My comment accepts all of that. The presumption, as a mechanism, is gone, and it is not coming back by way of a public comment.
The problem is what the rule does next. Having lost the mechanism, it quietly assumes the conclusion. Its own cost-benefit analysis treats the disadvantage the program was built to address as a closed historical chapter, an artifact of the years between 1986 and 2023 that has since been cured. Whether the presumption was a lawful method and whether race-linked disadvantage still exists are two different questions. The court answered the first. The rule assumes the second. That assumption, stated nowhere and supported by nothing, is where it goes wrong.
What the Record Actually Shows
The evidence on that second question is substantial and current, and the rule engages none of it. Disparity studies are the instrument the Supreme Court's own Croson framework points to for measuring discrimination in public contracting. They keep finding statistically significant underutilization of minority-owned firms across jurisdictions, after controlling for how many qualified firms are actually available. The Minority Business Development Agency's review of roughly 100 such studies found the median minority-owned-business share of contract dollars to be a small fraction of those firms' availability. A Richmond study covering 2017 through 2021 found low-single-digit shares against a far larger pool of available firms. A Cleveland study found minority-owned firms at roughly nine percent of available firms but under one percent of prime-contract dollars. An analysis of federal contracting from 2014 through 2019 found those firms receiving about half the dollars their availability would predict, with the gaps larger in the 2010s than in the decades before.
None of this is explained by firm quality or scale. The economist Glenn Loury gave us the cleanest account of why. He separates what he calls discrimination in contract, the overt exclusion in a transaction, from discrimination in contact, the informal and entirely lawful networks through which referrals, mentorship, bonding relationships, and past-performance opportunities move. In federal contracting, past performance and relationships are the currency of award. Where those networks stay segregated, and the disparity record says they do, human and social capital compound unequally across generations, with no individual contracting officer needing to harbor a single biased thought.
An imperfect remedy is not proof that the disease is cured. A disadvantage deep enough to outlast a decades-long, constitutionally fraught attempt to fix it is one to take seriously, not declare over.
Protect the People Already Inside
My first and most concrete request is narrow. The rule's preamble says the SBA "does not currently intend" to apply the new test to firms already in the program. That is a statement of present mood, not a commitment, and nothing in the regulatory text binds the agency to it. I ask the SBA to make it binding: a grandfather provision that keeps current participants eligible for the rest of their program terms.
The reason is reliance, and it runs in two directions. Getting into the 8(a) program is a substantial, one-time investment made against a nine-year clock that cannot be restarted. Firms hire consultants and counsel, spend months assembling the record, and then build teaming agreements, bonding, credit, and multi-year capture plans on top of a status the SBA reviewed and approved. The agencies that hold 8(a) contracts rely on that same continuity. An accepted 8(a) requirement cannot simply be pulled back out at the contracting officer's discretion, and agencies plan around the ability to re-engage a known, proven firm for as long as it stays eligible. Reserving an unstated option to disqualify firms mid-term destabilizes both sides, and the rule books that cost at zero.
The Honest Part
I concede more in this comment than my side usually does. Affirmative action was the law bending to correct a national history that, by law, subordinated people on the basis of race. That correction was imperfect and incomplete, and, as the Supreme Court reasoned in Students for Fair Admissions, it may have produced new harms of its own that offset some of the moral work it was meant to do. I do not wave that away. It is entitled to genuine weight.
But conceding all of it does not reach the question that matters. That a remedy was flawed, even flawed in both directions, is not proof that the condition it addressed has disappeared. The mechanism can be unconstitutional, the remedy can have been imperfect, and the underlying disadvantage can remain real, all at once. And the rule's own new test, read faithfully, can still reach that disadvantage. It invites applicants to point to governmental and private actions, policies, and practices, supported by reports, audits, findings, and rulings. The documented record of contracting disparities is exactly that kind of evidence. The outcome the presumption was built to reach can survive, by a route the Constitution allows.
Why I Signed My Name to It
I closed the comment with a first-person attestation, and I will repeat its spirit here. The disadvantage in this market is not only statistical. It is carried. Over my career I have competed for and delivered work aware that my standing in a given room was not assumed but had to be earned past a presumption I did not set, and on at least one occasion that awareness measurably affected my performance before it affected the outcome. I keep the example general on purpose. The point is not one episode but the condition it reflects, the long residue of an institutional history that the program exists to address.
This is the advocacy I said was coming. If you are a current participant, an applicant, or anyone with standing to weigh in, the docket is open until July 13. Read what we filed, and if it tracks your own experience, file too.