Last week, Indiana Governor Mike Braun and Attorney General Todd Rokita — Indiana’s top two law enforcement officers — teamed up to … stop enforcing the law. Specifically, they have decided to ignore the law as regards Indiana’s 43-year-old program that seeks to remedy discrimination against minority- and women-owned businesses in the awarding of government contracts. Braun and Rokita argue that they’re undoing “discrimination” by ignoring the law.
At a press conference, AG Rokita shared that Governor Braun asked for his guidance regarding this matter. Rokita said that, after conducting research, he agreed with Braun that the Minority and Women’s Business Enterprise (MWBE) program is “unconstitutional” based on the Supreme Court’s “Students for Fair Admissions” decision, aka the “Harvard decision.”
Mr. Rokita stated: “Indiana is returning to a colorblind approach to contracting. One in which merit — not race, not sex — determines who wins in business in this State.” Think about the “logic” of that statement. As everyone knows, such programs were created precisely because well-qualified businesses that were owned by women or people of color have routinely been passed over for contracts in favor of businesses that are owned by white men.
Thus, the first problem with this decision is that race- and gender-based discrimination never ended.
Thus, the first problem with this decision is that race- and gender-based discrimination never ended. I challenge anyone who claims otherwise to share precisely when that moment occurred. This argument is based on the utterly ridiculous notion that America should “return” to being a “meritocracy.” Yet, the fact is that America has never been a meritocracy — including for most white men. It’s good to remember, for example, that this is a land in which only white men “of property and standing” (i.e., the wealthy) could vote when our democracy was established.
The “meritocracy” argument is consonant with the equally specious statement that Chief Justice John Roberts offered regarding the Harvard decision: “The way to end racial discrimination is to end racial discrimination” (i.e., by eliminating laws and programs that address actual racial discrimination).
For decades I have invited those who share Mr. Braun’s and Mr. Rokita’s view to divulge at what point, specifically, America was a meritocracy. I’m still awaiting a cohesive, empirically-based, honest answer. That wait won’t ever end. Why? Such a time doesn’t exist. (In mathematics we call this a “null set.”)
During his press conference AG Rokita said that the MWBE program “is an insult to (women- and minority-owned) businesses.” How many Black business owners did he consult before making that statement? Did he talk to Larry Williams, president of the Indy Black Chamber? No. Did he talk to Thressette Briggs, board chair for the National Association of Women Business Owners (NAWBO)? No. Indeed, the Attorney General would be hard pressed to find even five Black business owners who agree with him.
The real insult is Mr. Rokita’s view that the Harvard decision is “probably the most important decision on equal protection since (Brown v. Board of Education).” He went on to say that it is akin “to desegregating the South, to getting rid of Jim Crow, to passing the 19th Amendment.” Mr. Rokita also claimed, without a hint of irony, that the Harvard decision is in line with the Equal Protection Clause of the 14th Amendment.
Notice how nonsensical his reasoning is. As a result of the Civil War, Congress ratified the 13th, 14th, and 15th amendments. Mr. Rokita would have us believe that those amendments cemented the notion of “colorblindness.” The exact opposite is true. Southern states vociferously resisted these amendments, but were forced to ratify them as a condition of rejoining the Union. In short, Mr. Rokita’s claims are historically untenable and morally indefensible.
Those three amendments were created specifically as color-conscious laws to address the anti-Black racial discrimination that existed even before America became a nation. Any first-year law student knows this; thus, it is impossible to believe that the AG doesn’t. Incidentally, his argument regarding the 14th Amendment contradicts President Trump, who argued that “birthright citizenship” only applies to African Americans. You can’t get much more color-conscious than that…
Crucially, a reporter asked Mr. Rokita who the MWBE program has harmed. He replied: “By definition of the program, Caucasian people have less of an opportunity because you’re giving preferences to women, or gender, or on the basis of race.” In short, he is arguing that the program hurts white men. Notice two things. First, Rokita’s reticence to say “white people.” (Clearly, he’s aware of how that would sound.) Second, his argument assumes, a priori, that minority- and women-owned businesses are merit-less. He has no basis on which to draw such a conclusion.
Further, who in Indiana … can spend more than four seconds here and conclude that white men are being harmed by Black- and women-owned businesses?
Further, who in Indiana, resident or visitor, can spend more than four seconds here and conclude that white men are being harmed by Black- or women-owned businesses? And, if the program is inherently unconstitutional, as Rokita claims, why wait for the Supreme Court to act? The answer may be surprising. As he shared, the Indiana General Assembly did not want to eliminate the program. I applaud them for that stance.
The AG and his Assistant Chief Deputy, Blake Lanning, alluded to some non-specific “studies” which indicate that MWBE programs cost taxpayers money. That is not the case. For example, a McKinsey & Company survey of procurement leaders found that such programs offered their corporate partners year-over-year cost savings of 8.5%. And, in 2024, the research journal POM published a study of nearly 40,000 federal procurement contracts. It found that contracts awarded to small and diverse suppliers using participation goals resulted in lower cost overruns and shorter delays than those awarded without such goals.
Also, according to Wells Fargo, women- and minority-owned businesses generate trillions of dollars in revenue for the nation’s economy. They also provide millions of jobs. Thus, removing state contracts directly harms the household income and financial stability of Hoosiers at a time when people of color are already disproportionately struggling. How is that “pro-family”?
Finally, Indiana’s own 2020 disparity study found that minority- and women-owned businesses were available to perform approximately 18.2% of IDOA work. It also found that their participation was 14.2% in non-Public Works contracts, where MWBE goals were used, but that participation dropped to 4.5% in Public Works contracts — where those goals were not used.
… I ask the governor and the attorney general to define “merit.”
Most importantly, MWBE programs are to be replaced with “merit-based” programs, I ask the Governor and the Attorney General to define “merit.” Specifically, what are the objective and empirically-based standards that constitute “merit”? Define it. Codify it. Distribute it. Thus, Hoosiers could be confident that this action is not simply an excuse to exclude women and people of color from prospering. As it stands, looking at the staffs of the Governor and the Attorney General makes one skeptical that they believe that any people of color are “qualified.”
Once opportunities for MWBE’s decline — and they will decline — I call on the governor and the Attorney General to identify the inferior businesses that formerly received contracts. I call on them to make those companies’ names public in the interest of ensuring that Hoosiers can avoid their inferior products and/or services. Indeed, I call on the governor and the Attorney General to issue reparations for the “Caucasian people” who have been harmed by these merit-less businesses that, in effect, stole money from them.
This issue was of such importance to the AG and the governor that they have taken action to stop enforcing the law. That raises the following question: Where is such urgency when alleged victims are not “Caucasian people”? Indeed, what action has the governor or the attorney general taken on behalf of Black people who have been discriminated against?
The fact is that anti-Black discrimination is so entrenched economically and psychologically that efforts at equality look like “discrimination” to those who have always benefitted from inequality. Mr. Rokita ingenuously suggested that women and people of color merely need to show up to be awarded lucrative contracts, irrespective of their qualifications.
That is far from the case. The current target for minority-owned businesses to receive contracts from the State is roughly 8%. Yet, such businesses only receive roughly 5% of such contracts. Thus, logically speaking, the only way to be sure that “Caucasian people” are not being harmed is for them to receive 100% of the contracts.
Is that where we are?
Contact community leader Larry Smith at larry@leaf-llc.com.
