A disabled Navy veteran seeks to end discrimination by federal agency

Marty Hierholzer is a service-disabled veteran with a simple request: that the government look to his individual qualifications, rather than his skin color. The Small Business Administration (SBA) runs a program called 8(a), which helps small business owners who face social disadvantage. The federal government sets aside a percentage of government contracts for a sheltered market accessible only to 8(a) businesses. The agency demands proof of disadvantage to enter the program unless the business owner is a racial minority.

Hierholzer is white, so, despite his documented disabilities, the SBA has turned him away while ushering others into the program based solely on where on the color wheel their skin pigment falls. Hierholzer has challenged this racial favoritism in a case titled, Hierholzer et al v. Guzman. His story demonstrates why public policy should look to the content of our characters, not the color of our skin.

Hierholzer spent more than two decades in the Navy, performing one of the world’s most hazardous jobs — deep-sea diving. He deployed to countless countries to perform elite work a thousand feet or more underwater, where the intense pressure exacts a heavy toll on divers’ bodies. For commercial divers alone, the occupational fatality rate is 40 times the national average. Add to that the perils of war, and Hierholzer’s rank of master chief petty officer stands out as a remarkable feat. But, like so many who face great odds in the line of duty, Hierholzer did not come away unscathed. He suffers from certain physical and psychological disabilities.

Yet Hierholzer has triumphed and has run his own small business for over 15 years. MJL Enterprises contracts with the U.S. military under the motto, “Serving those who serve.” But it hasn’t been easy. Hierholzer’s post-combat depression, PTSD, physical handicaps, and the stigmas that disabled veterans face have held his business back.

To offset these challenges, Hierholzer applied for the 8(a) program, which purports to assist socially disadvantaged small business owners. The SBA turned him down. His official military status as 60 percent disabled, coupled with the documented contracts he lost because of his disabilities, apparently were not the disadvantages the SBA was looking for.

As Hierholzer soon learned, however, while he was slogging through general screening, anyone with the correct skin color could breeze through the SBA precheck line. That’s because business owners with the right racial background, as determined by Congress and the SBA, are presumed to be disadvantaged, regardless of personal experiences.

The Constitution enshrines what the Supreme Court has called a “simple command that the Government must treat citizens as individuals, not as simply components of a racial, religious, sexual or national class.” Yet the SBA and state agencies across the country get away with awarding contracts and other government benefits to small businesses based on race. The SBA treats Hierholzer and other small business owners as indistinguishable members of racial and ethnic groups created by the SBA, rather than unique individuals deserving individualized treatment.

Justice John Marshall Harlan, in his famous dissent to the Supreme Court’s decision allowing segregated train cars in Plessy v. Ferguson, explained that the law “regards man as a man,” not as one nameless thread in the tapestry of a race or ethnic group. “There is no caste here,” Harlan said. For most of human history, vying bands of ethnic and racial groups saw outsiders as subhuman. The Constitution promises a different vision — one in which we shed tribe and embrace the innate value of the individual.

Of course, that promise has taken time to blossom; our nation has struggled through its own troubled history on race. But we do not overcome that past by sorting people into creditor races and debtor races. We do it by looking beyond race to the individual. As Chief Justice John Roberts once said, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

Hierholzer’s story shows why early civil rights leaders fought for individualism, rather than doubling down on race-conscious policies. Hierholzer has faced extraordinary challenges, yet to the SBA, disadvantage evidently is only skin deep. His group identity trumps his life experience. We are not interchangeable units in competing tribes. Our constitutional system exalts the individual above the group. Hierholzer gave up a healthy body and mind defending the Constitution. The time has come for the Constitution to defend him.

Ethan Blevins (@ethanwb) and Wen Fa (@wenfa1) are attorneys at Pacific Legal Foundation, a nonprofit legal organization that defends Americans’ liberties when threatened by government overreach and abuse.