Virginia’s SWAM bill faces legislative challenges on race and gender, experts say

A Virginia state bill passed along party lines directing state agencies to consider the race and gender of small business owners when distributing discretionary funds for purchases and contracts could face serious legal challenges, experts told Fox News Digital.

The Small SWAM Business Procurement Enhancement Program act “provides that executive branch agencies and covered agencies are required to increase their small SWAM business procurement rates by three percent per year until the 42 percent goal is reached or, if unable to do so, to achieve achievable goals to increase their rates of use,” according to its text. SWAM is small, woman-owned, and minority-owned.

Purchases between $10,000 and $200,000 should be set aside to be given to SWAM businesses, according to a bill authored by Del. Jeion Ward, D-Hampton.

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As the bill approaches the desk of Democrat Gov. Abigail Spanberger, the Oversight Project’s legislative vice president Kyle Brosnan told Fox News Digital that it appears to be in line with Richmond’s direction.

Brosnan said the bill included “intentional discrimination against white men.”

“Since gaining full power in state government, Virginia Democrats have shown their true colors as ideologues,” Brosnan said.

“By limiting race and gender to 42 percent of government spending on federal contracting, Gov. Spanberger and his far-left staff in Richmond are showing their true colors as radicals.”

Zach Smith, former North Florida district attorney, added that any time the government proposes to treat people differently based on race and gender, it is unconstitutional.

“I think we saw the Supreme Court speak clearly in this regard with its Harvard and UNC decisions, banning the use of race when students enter higher education institutions,” he said.

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“Because of that Students for Fair Admissions decision, we’ve seen other federal courts apply that same logic to other federal government programs that want to prioritize minority-owned businesses that treat people differently based on their race, so I think the same logic can apply to this state law action.”

That Supreme Court case saw Chief Justice John Roberts write the majority opinion and Justice Clarence Thomas write the concurrence in a landmark decision that ended affirmative action in college admissions.

“Although I deeply understand the social and economic destruction that has befallen our nation and all those who suffer from discrimination, I hope that this country will live according to its goals. [that] all men are created equal … and should be treated equally before the law,” Thomas said at the time.

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Smith said that even before this, the Supreme Court found the appropriations “unconstitutional” and that if Spanberger signs the bill there will be angry business owners who will demand accountability.

“I think there may be lawsuits regarding this because this will involve the issue of the federal constitution in addition to other legal allegations that may be raised,” he said in an interview on Wednesday.

“This could be taken to federal court,” he said, suggesting that the arguments against it would be on the grounds of the Fourteenth Amendment.

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A welcome sign is placed in the grass near the intersection of Lee Highway, Key Bridge, and George Washington Memorial Parkway in Rosslyn, Arlington County, Virginia. (Universal Images Group/Getty Images)

Brosnan agreed, criticizing a section of the bill that requires Virginia taxpayers to fund $1 million to improve systems, staffing and reporting as “creating discrimination” in his words.

“It also “sets aside” government contracts of up to $200,000 for minority-owned women-owned businesses, as long as their bids are 5% higher than the lowest “non-guaranteed” — read ‘White Male’ — business.”

“Did the people of Virginia expect to get this decision if they voted for a ‘moderate’ governor?” he asked.

Conservative outlet “The Federalist” said the bill created “racial fraud” and reported that part of the bill forces the director of the Department of Small Business and Supplier Diversity to conduct a “disparity survey” every five years, which the outlet said translates into determining how to reduce the number of White males winning government contracts.

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Fox News Digital reached out to Spanberger for an indication of whether he will sign the bill. Fox News Digital also reached out to Ward, who also chairs the Labor and Commerce Committee on Capitol Square.