The New Racial Discrimination The Biden Administration’s ‘equity’ policies are losing in court.
https://www.wsj.com/articles/the-new-racial-discrimination-11625006066?mod=opinion_lead_pos1
The Supreme Court recently put off whether to hear a case accusing Harvard of discriminating by race in admissions. The Court asked the Biden Administration for its view of the case, punting a decision to next fall or later. We hope the Justices realize that sooner or later they will have to decide whether the new wave of racial discrimination is constitutional.
President Biden’s emphasis on “equity” as a dominant policy goal is already creating new challenges in the federal courts. By equity, Mr. Biden means preferences for some racial groups over others to achieve equal outcomes. A federal judge in Wisconsin recently issued a temporary restraining order against a $3.8 billion Department of Agriculture program that allocates loan forgiveness by race. And last week another federal judge, this one in Florida, issued a preliminary injunction.
This program, part of Covid-19 relief, is aimed at helping “socially disadvantaged farmers.” A USDA fact sheet boasts that it steers benefits to those who are “Black, Native American/Alaskan Native, Asian American or Pacific Islander, or are of Hispanic/Latino ethnicity.” The legislation further includes $1.01 billion in funding “to USDA to create a racial equity commission and address longstanding discrimination across USDA.”
White farmers say the program’s allocation by race is unconstitutional—and that the program could run out of funds before their applications are even considered. Federal Judge William Griesbach in Wisconsin agreed, finding that the government lacked a “compelling interest” for racial classifications, that its use wasn’t narrowly tailored, and that the farmers are likely to succeed on the merits of their claim that Agriculture’s “use of race-based criteria” violates their right to equal protection under the law.
Meanwhile, two other federal courts have ruled against the Small Business Administration’s (SBA) program to distribute restaurant revitalization funds by race. Women and racial minorities were given priority in the first 21 days, sending everyone else to the back of the line. Federal Judge Reed O’Connor in Texas granted a preliminary injunction on grounds the restaurateurs are “experiencing race and sex discrimination at the hand of government officials.” The Sixth Circuit Court of Appeals has granted a preliminary injunction in a separate case.
Mr. Biden sells his agenda as taking America into the future. But allocating government funds or privileges by race is a step back to an uglier past. It moves away from the ideal espoused by Martin Luther King Jr. that Americans should be judged by their character—not their skin color. Instead it adopts a system of racial preferences like Malaysia’s that favors ethnic Malays over other groups, especially ethnic Chinese. If applied on the scale Mr. Biden hopes, America would become a nation of groups competing for racial spoils and defined outcomes rather than seeking equal opportunity for everyone.
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In ruling against the SBA, the Sixth Circuit cited Richmond v. Croson (1989) in which the Supreme Court struck down a Richmond, Va., program that reserved 30% of any city construction contract for minority businesses. Justice Sandra Day O’Connor wrote for the majority that the Constitution’s Equal Protection Clause demands strict scrutiny for judging governmental racial classifications—and that broad justifications based on past discrimination aren’t enough.
Strict scrutiny requires that the government have a compelling interest for discriminating by race, and that it must use the least restrictive means to achieve that interest. If less restrictive ways can achieve the same purpose, the policy fails.
By this standard it’s hard to see Mr. Biden’s race-based equity plans prevailing in court. On CBS’s Face the Nation this month, Sen. Tim Scott (R., S.C.) singled out the disparate treatment for black and white farmers as a perverse example of justifying new discrimination on the basis of old discrimination.
The Harvard case doesn’t involve divvying up government aid by race. But the use of racial classifications to discriminate against Asian-Americans in admissions is the same violation of constitutional principles. Harvard accepts federal aid and is obliged to follow Title VI of the Civil Rights Act. History shows that discriminating by race breeds resentment and deeper political and social polarization. For the good of the country, this is an issue the Supreme Court can’t duck forever.
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