COVID-19 a New Excuse for Racial Preferences

by Hans Bader

Government officials are handing out tax dollars based on race and gender in response to the COVID-19 pandemic. One example is in Arlington, where I live. The Arlington County government announced that it will hand out grants to small businesses based on “considerations” such as whether the business is “women and/or minority-owned.” That “consideration” of race and sex is unconstitutional.

To legally hand out tax dollars based on race to minorities, Arlington would have to show that it intentionally and systematically discriminated against those specific minority groups in the recent past, and needs to remedy that discrimination by giving them money today. The Supreme Court has said that race-based programs are allowed only to remedy the government’s own discrimination, not societal discrimination. (See Richmond v. J.A. Croson Co., 488 U.S. 469, 497 (1995)).

Arlington’s government can’t make that showing. Arlington is hardly a racist, sexist place that discriminates against minorities and women. Indeed, it is disproportionately run by women and minorities. The sheriff and commonwealth’s attorney are female and have been for years. The chair of the County Board is a woman. For years, the County Board has had minority representation.

Yet, Arlington will prefer women and minorities in making grants to small businesses trying to stay afloat. On April 16, it announced:

Arlington County has created the Arlington Small Business Emergency GRANT (Giving Resiliency Assets Near Term) Program, to provide immediate financial assistance to Arlington’s small businesses impacted by the COVID-19 pandemic….The GRANT Program would provide grants of up to $10,000 to businesses and non-profits with less than 50 employees. Businesses may use the grants for employee salary and benefits as well as for other business capital and operating expenses directly related to the immediate impacts of COVID-19. Funding for the program is being reallocated from existing grant funds in the FY 2020 budget…. Applications will be evaluated through a competitive process involving a weighted scoring system, looking at considerations like the number of jobs retained or supported with funds, length of time the business has operated in Arlington, whether it is women and/or minority-owned, demonstrated need, and how the funds will be used.

This preference for women and minorities is unjustified.

It is true that Arlington, like the South in general, once was segregated; the county had segregated schools into the 1960’s. But that discrimination discrimination is too far in the past to justify giving black people a racial preference today. And it certainly does not justify giving all “minorities” a preference in grant applications today.

Discrimination against black people is no justification for aiming benefits at other minority groups. (See Richmond v. J.A. Croson Co., 488 U.S. 469, 505 (1989)). Courts have struck down racial set-asides because they included minority groups such as Asians that lacked black people’s history of being discriminated against by the government using the racial preference. (See L. Feriozzi Concrete Co. v. Casino Reinvestment Dev. Auth., 776 A.2d 254 (N.J. App. 2001)).

Segregation in Arlington ended decades ago. Even when when the government is remedying the present effects of its own past discrimination, rather than societal discrimination, discrimination that happened more than twenty years ago is too far in the past to justify giving minorities special treatment today. Courts have so ruled. (See, e.g., Brunet v. City of Columbus, 1 F.3d 390 (6th Cir. 1993) (court ruled that gender discrimination that occurred 17 years earlier did not justify affirmative action); Hammon v. Barry, 813 F.2d 412 (D.C. Cir. 1987) (court ruled that race discrimination 14 years earlier did not justify affirmative action program)).

Colleges can consider race in admissions to promote intellectual “diversity,” if race is just one of many factors. The Supreme Court says that is because of colleges’ “academic freedom.”

But Arlington’s use of race in grants is not in an academic context, nor does it promote intellectual “diversity.” When Arlington County tried to make decisions based on “racial or ethnic group” to promote diversity, courts struck that effort down, saying Arlington couldn’t use race in assigning students to schools. (See Tuttle v. Arlington County School Board, 195 F.3d 698 (4th Cir. 1999)).

Courts have generally refused to allow the government to make race-based decisions to promote “diversity” outside the context of higher education. For example, the government cannot require that regulated entities use racial or gender preferences in employment to promote “diversity.” (See Lutheran Church–Missouri Synod v. FCC, 141 F.3d 344 (4th Cir. 1998)).

Most judges say that race-based programs and affirmative action are permitted only as a way of remedying a government’s intentional discrimination, not racial disparities amounting only to “disparate impact.” (See, e.g., Michigan Road Builders v. Milliken, 834 F.2d 583, 593 (6th Cir. 1987), aff’d, 489 U.S. 1061 (1989); Builders Association v. County of Cook, 256 F.3d 642, 644 (7th Cir. 2001); People Who Care v. Rockford Board of Education, 111 F.3d 528, 534 (7th Cir. 1997)).

It is less clear whether that’s also true for gender-based affirmative action. Some courts say a history of intentional governmental discrimination against women must be shown before a local government can award benefits based on sex.  (See, e.g., Brunet v. City of Columbus, 1 F.3d 390, 406 (6th Cir. 1993); Builders Association v. County of Cook, 256 F.3d 642, 644 (7th Cir. 2001)).

There are plenty of minority-owned and women-owned businesses in my neighborhood in Arlington, and there is no sign that they are hampered by discrimination, much less discrimination by the County.

Even if blacks or women are “underrepresented” in various kinds of small businesses, that is not proof of discrimination against them. Racial or gender imbalance is not the same thing as discrimination. (See Police Association of New Orleans v. City of New Orleans, 100 F.3d 1159, 1169 (5th Cir. 1996) (city could not promote blacks based on race “to give a better reflection of the racial composition of the city,” or “remedy racial imbalances in the police department”)).

A federal appeals court ruling affirmed by the Supreme Court said that the government can only use gender preference to remedy its own discrimination against women — not discrimination against women in the broader society. (Michigan Road Builders v. Milliken, 834 F.2d 583, 595 (6th Cir. 1987), aff’d, 489 U.S. 1061 (1989)).

Arlington does have more minorities in certain neighborhoods, and less in other, wealthier neighborhoods. But racial imbalance in housing patterns or school enrollment does not legally constitute segregation or discrimination against minorities. (See Freeman v. Pitts, 503 U.S. 467, 494 (1992)).

Also, widespread discrimination, not just a few individual instances of discrimination, has to be shown to justify using race, according to judges. So even if there were isolated instances of Arlington County discriminating against black people or black employees, that wouldn’t justify discriminating in favor of black people as a class. (See, e.g., Middleton v. City of Flint, 92 F.3d 396, 405 (6th Cir. 1996)).

Businesses denied a grant on the race or sex of their owners have standing to sue over Arlington’s use of race and gender. That’s true even if the county considers race or sex as just one of many factors, and eliminating the use of race or sex wouldn’t guarantee that a particular business would get a grant, due to scarcity of funds and many businesses applying for just a few grants. (See Northeast Florida Chapter v. City of Jacksonville, 508 U.S. 656 (1993)).

Taxpayers may also have standing to sue over this unconstitutional racial preference, if it involves any direct monetary costs to the County. There is no such thing as “taxpayer standing” to sue the national government, outside the context of the First Amendment’s establishment clause. But it is a different story when a taxpayer sues a local government. Then the taxpayer has standing to sue if a challenged policy results in a direct monetary cost.  (See D.C. Common Cause v. District of Columbia, 858 F.2d 1, 5 (D.C. Cir. 1988)).

Hans Bader is an attorney living in Arlington. This piece originally was published at Liberty Unyielding.

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15 responses to “COVID-19 a New Excuse for Racial Preferences

  1. johnrandolphofroanoke

    I believe the application process will roll out by May. Too late by then for many of the Mom and Pop businesses. Since this is a grant I suppose it will not be necessary to pay back. Ten grand might buy a few weeks of staying afloat.

    • especially when Ruth’s Chris Holdings (6000+) employees has 17 subsidiaries, two of which just sucked down the maximum loans of $10M from JP Morgan. Wonder what banks the other 15 hit? Wonder what CEO will still get his $2M in compensation?

      • You need to stop misrepresenting the truth! I mean it. There is no Ruth’s Chris Holdings and there is no CEO making $2m per year.

        It’s called Ruths Hospitality Group and their CEO made over $6m in 2018 which, I assume, is the last year reported. Lol.

        I looked up one of the two subsidiaries which got a loan and it had more subsidiaries. Those lower level subsidiaries were a mixture of companies but mostly single restaurant steak houses.

        My guess is that Ruths Hospitality Group has both franchised and corporate owned restaurants. The loans were for some of their corporate owned restaurants.

        Yes, it’s disgraceful that a half billion dollar restaurant conglomerate can get $10m loans for subsidiaries under SBA rules.

        Obama’s bailout was a completely corrupt fiasco. Neil Barofsky was the Inspector General for TARP. He wrote a book titled, “Bailout”. Barofsky was a reliable liberal who voted for Obama. Read his account of how the Obama Administration grifted, grafted and generally mismanaged that bailout.

        Anybody who wants to win a Pulitzer Prize ought to start writing about this COVID-19 bailout right now. What do they say? It’s not the crime it’s the coverup? My version is, “It’s not the crisis it’s the bailout”

        This one is going to be doozy.

        • You’re right, it was more than $2M. $500k salary, $700k bonus, and a bunch more in options. The ULM took a 50% cut in salary, ooooh down $250k. Sorry about the misnamed company. There is something akin to it, and they do have 17 subs.

          Again, we know 2 took loans. Time will tell about the other 15.

          Obama ain’t president, but you’ll figure out how to blame him.

          • I’m an equal opportunity blamer of American government. Obama’s “shovel ready” projects were a joke that lined the fat cats’ pockets with Main Street money. Read Barofsky’s book. Trump’s money tornado will be worse. There’s not even the pretense of a plan with this fiscal free for all. And Trump’s using a bulldozer instead of shovel to move this latest money mountain into Wall Street’s hands (and pockets). I hear Erik Trump, Chelsea Clinton and Hunter Biden all simultaneously wet their pants when they heard about this bailout. A direct line from the US Treasury into the veins of connected political progeny.

            Meanwhile, King Ralph is going to give a parting gift to his friends in our General Assembly. His first request from the feds? Flexibility in state spending of bailout funds. You can hear the champaign corks popping at Dominion headquarters, Virginia’s unions and environmental groups. You can add large butterfly nets to toilet paper as things sold out in Richmond stores. The special interests in Virginia are going to be running through River City grabbing the bailout money floating in the air by the bushel full with those nets. You can hear the heads of government relations at Virginia companies saying to their CEOs, “I told you it was worth buying off the General Assembly all those years. We’re going to be rich! Rich beyond our wildest dreams. Here, have a net.”

        • I retract the Obama crack. I remember when Bush announced the first bailout of the banks and AIG, Iin Sept(?) 2008. There was a meme of the group pic, pres, sectreas, and someone else in the rose garden. Over Bush’s head was a bubble, “Where’s Cheney?” The response, “He’s alone in the Oval Office counting the money.”

        • Leave ’em laughing. When they announced the SBA loans, a friend said,”If you think the unemployment lines are long, you should see the line of big corporation’s lawyers waiting to file incorporation papers for the shells. Mom&Pops will never see a dime.”

          He was right.

          Biden will spend the 1st three years fighting AIG-style lawsuits by the majors.

  2. designated an 8A firm – Small (<500 employees, and $10M(?) income) Disadvantaged (minority owned) Business. Not what it sounds like sometimes, but has been part of the government contracting for decades.

    Woman-, minority-, Alaskan-owned are some of the recognized minorities. Can't tell you the magic that goes into the determination of minority, but a Turkish Jew is not one, although I cannot think of a smaller group of people.

  3. The state also has a policy under which agencies are supposed to give preference, in contracting, to small, women-owned, and minority-owned businesses. I am not a fan of this program, because I think it is abused, but that is a different issue than its constitutionality. It seems that the Arlington program is somewhat the same.

    • The Federal Govt has similar 8A programs also when they put out contracts for bid, the 8A have some advantages. But you can bet in a place like NoVa where there are literally hundreds of DOD and other govt contractors that 8A is alive and well. Some of these companies spring up from personnel from existing companies so when a contract gets re-bid and goes to an 8A company, the actual personnel already engaged in work for the govt – don’t change.

      Even for actual Civil Service employment – Personnel depts look at the demographic profile of the workplace and if they are short of women and minorities relative to societal demographics, they will work to improve the balance.

      When I first went to work, it was pretty much an all male all white workplace with the exception of the lower level jobs, i.e. the janitorial staff was usually minority and the secretarial staff usually women. When I left, it was half and half men/women and 25% minorities. The govt combed smaller colleges recruiting women and minorities with hard science degrees.

  4. Arlington is fast becoming Virginia’s San Fransisco, a course it launched with its Faux Smart Growth initiative, starting with Million Dollar Bus Stop, ten years after the real smart growth revolution begun in late-1970s had transformed Arlington County, and was all but complete but for cake frosting and fruitcakes.

  5. An excellent new book out explains in depth and detail how we got to the place the Hans Bader describes so well in his post here, COVID-19 a New Excuse for Racial Preferences. How we went from a dream for a colorblind society to one obsessed with handing out money and favors on the basis of the color of peoples’ skin, all at the expense of others of different skin color who are not so favored.

    The book is “Age of Entitlement, America Since the Sixties,” by Christoper Caldwell.

    Victor Davis Hanson calls this book a “landmark cultural and political history of the last half century … that brilliantly dissects the new progressive establishment, and shows how the reforms of the sixties gradually devolved into intolerance, self-righteousness, and the antithesis of what had started out as naive idealism, (how) … dreams of the sixties have gone so terribly, but predictably, wrong.

  6. No question, Reed, in this age of identity politics, when people see themselves in all kinds of identity terms including ethnic, religious, even political, let alone racial, categories, it is difficult to insist that “no racial discrimination” means just that. Identity ‘entitlement’ is one of its ugliest manifestations. One might wish we could go back to the 1950s when the pivotal cases were decided, during the dismantling of segregation and its ugliness, that race could be used as a criterion (such as in busing kids, assigning them to classes, etc.) to unravel racial discrimination, even to compensate for it in the short term, and remove that line of thinking from the law; but today it has certainly outlived its usefulness. I think it’s fair to say these de-facto quotas and other “entitlements” arose out of perceived necessity from confronting the deeply entrenched institutional and legal opposition to desegregation, thus they had a legal rationale at the time — but today, more than 50 years later, they have a life of their own. Is that the best way to create a color-blind society? Our children will have to answer that question.

  7. So a person who believes she/he is discriminated against by the Arlington board should file actions under the federal civil rights statute, most especially 42 USC sec. 1983. With the proper proof, such an individual can obtain relief against elected officials in their individual capacity.

    Using 9th Circuit law (the first I found quickly), “The elements of a § 1983 claim are (1) the action occurred ‘under color of state law’ and (2) the action resulted in the deprivation of a constitutional right or federal statutory right. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir.2006) (citing West v. Atkins, 487 U.S. 42, 48 (1988)). In order to be individually liable under § 1983, an individual must personally participate in an alleged rights deprivation. Avalos v. Baca, 596 F.3d 583, 587 (9th Cir.2010).

    The federal right in question is equal protection under the law based on the fact the Supreme Court has held race is suspect classification.

  8. Pingback: COVID-19 pandemic roundup | Overlawyered

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