Preference or Prejudice? Federal Court Finds Biden Administration Is Engaged In Racial and Gender Discrimination

(White House Photo/Adam Schultz)

Below is my column in The Hill on the recent decision of a federal judge that the Biden Administration was engaged in racial and gender discrimination in the administration of the pandemic relief under the American Rescue Plan Act. It is a question that is now being raised in a variety of federal programs under the Biden Administration.

President Biden has spoken out often, eloquently and passionately against the “ugly poison” of discrimination and racism in our government. So a ruling by a federal district court in Texas this week was particularly jarring: Judge Reed O’Connor found that the Biden administration engaged in systemic gender and race discrimination to implement COVID-19 relief for American restaurants. Café owner Philip Greer had claimed in a lawsuit against the Small Business Administration (SBA) that, while white, he needs the same rescue as minority restaurateurs under the newly enacted American Rescue Plan Act.

Greer’s Ranch Café reportedly lost over $100,000 during the pandemic. Like many restaurateurs, Greer was delighted to hear about the Restaurant Restoration Fund approved by Congress. However, he soon learned that, due to his race, he could not be considered until other applicants were allowed to seek funds. The White House and the Democratic-controlled Congress insisted that various groups should be first in line, including women, minorities and “socially and economically disadvantaged” people.

The government confirmed that $2.7 billion already has been distributed through the fund and that there are almost 150,000 pending applications from owners with preferential treatment. As a result, owners like Greer fear not just delayed payments but the exhaustion of the $28.6 billion allocated under the program. The SBA confirms it already has requests for $65 billion in payments under the fund.

The Biden administration agreed that such classifications, particularly based on race, must satisfy the highest constitutional burden of “strict scrutiny.” That means such classifications are unconstitutional unless they are “narrowly tailored” to serve a “compelling governmental interest.” However, the Justice Department cited studies that women and minorities historically have fewer lender resources and, before the pandemic, often were less likely to receive credit. There is ample support for that claim. The legal question is whether historical disparities are enough to justify a system of race and gender preferences when all restaurants were impacted by the pandemic.

In 1989, the Supreme Court ruled that a minority set-aside program in Virginia was unconstitutional under the Equal Protection Clause. The government cited historical barriers for minority enterprises, but the court balked. It noted that “identified discrimination” in the past “would give … government license to create a patchwork of racial preferences based on statistical generalizations about any field of endeavor.” When using racial classifications, the divided court stressed that “simply legislative assurances of good intention cannot suffice.”

Judge O’Connor relied on such precedent to declare the enforcement of the criteria for COVID-19 relief to be raw racial and gender discrimination. His ruling can be appealed, but it highlights a concern over a variety of state and federal COVID-19 programs enforcing racial and gender criteria. In Oregon, a state COVID-19 program for black businesses, called the Oregon Cares Fund, was challenged by a Mexican-American café owner and others under the Equal Protection Clause. While legislative counsel and some legal experts raised concerns over the constitutionality of the law, a trial court rejected the challenge. Other such cases are continuing.

Courts have allowed minority set-asides to remedy past inequities. Such programs often are created solely for that purpose and, thus, are treated as a remedial benefit for a targeted group, as opposed to an exclusionary denial for other groups. These cases can present difficult questions of what is needed to enforce a racially discriminatory policy and when a legislative remedial measure becomes either a form of reparation or discrimination.

The question is, when should preference be given over a common resource desperately needed by everyone? For example, the Biden administration and many states gave preferential treatment to minority communities in the allocation of early vaccines; states like Montana and Vermont gave people of color priority in receiving shots. That meant many other citizens had to wait, due to their race, for a vaccine in the middle of a lethal pandemic. Yet, advocates cited greater vaccine “hesitancy” in minority areas and other historic barriers to medicine as justification.

The court’s concern in the Greer case is that the Biden administration’s rationale would allow the use of racially discriminatory policies throughout the government. This is a far more nuanced constitutional issue than past challenges. Rather than impose a quota system or a direct exclusionary policy, Greer and others complain that the government can achieve the same result by prioritizing certain groups in the receipt of benefits.

The alternative is to maintain a bright line against the use of racial criteria in government programs. In a 2007 case, Chief Justice John Roberts stated that position most succinctly by declaring that the “way to stop discriminating on the basis of race is to stop discriminating on the basis of race.”

Even if such categories pass constitutional muster, there is the question of selecting groups for favored treatment. In the case of Oregon’s fund, Latino owners were excluded. Under the American Rescue Plan, anyone can qualify for preferential treatment if they claim to be part of a group that has “been subjected to racial or ethnic prejudice or cultural bias within American society.” It is the legislative version of the special graduation held at the University of Portland for “QTBIPOC (LGBTQIA and/or BIPOC).” Once the inclusions were defined, the only major exclusion was straight white males.

The question is whether an American Rescue Plan can tell white owners to wait for a rescue that might not come. Of course, as with vaccine priority programs, the preference given minorities was designed to be short-lived and, as a result, difficult to challenge. However, the underlying issue likely will remain as the Biden administration uses racial and gender criteria in a variety of government programs and resources. Indeed, the same logic was used in other programs like the special COVID-19 relief funds for black farmers.

The courts must resolve where to draw this line when limited funds can result in the reduction or denial of government aid based solely on skin color or gender. That fear of a zero-sum game for public aid will deepen our divisions and undermine the worthy unifying theme struck by President Biden in his campaign. Racial discrimination is indeed a “poison” in our body politic even when done for the best of motivations. The question is, how much can the body politic tolerate?

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates online @JonathanTurley.

76 thoughts on “Preference or Prejudice? Federal Court Finds Biden Administration Is Engaged In Racial and Gender Discrimination”

  1. 1977: Biden: “integrating black students would turn schools into ‘a jungle… a racial jungle.’” He OPPOSED court-ordered busing to desegregate public schools.

  2. Biden The Pandering Racist:

    — “Well, I tell you what, if you have a problem figuring out whether you’re for me or Trump, then you ain’t black.”

    — “You got the first mainstream African American who is articulate and bright and clean and a nice-looking guy. I mean, that’s a storybook, man.” (That’s in reference to President Obama.)

    — “Unlike the African-American community, with notable exceptions, the Latino community is an incredibly diverse community with incredibly diverse attitudes about different things.”

    — “In Delaware, the largest growth in population is Indian-Americans moving from India. You cannot go to a 7-Eleven or a Dunkin’ Donuts unless you have a slight Indian accent.”

  3. Justice Roberts is right..“way to stop discriminating on the basis of race is to stop discriminating on the basis of race.”
    We can’t right the wrongs of the pass..we need to deal with the now and help the businesses that need it, not race or gender etc related

  4. Remember when Democrats accused Trump of having dementia and/or heart disease? He took a cognitive test, instructed his doctor to publicly release the results, and to answer questions from journalists about his physical and mental health.

    Do you guys all notice how Biden has not done similar? His supporters are just outraged at the very idea of concerns of cognitive decline in someone who keeps forgetting names, where he is, or claiming that he’ll “get in trouble” if he answers questions, but they don’t have him prove his mental competency.

    I also felt that it was outrageous for anyone to claim Trump had mental illness, including dementia, or to claim he had heart disease. But I believe Trump did the right thing by releasing test results and having his doctor answer questions.

    The physical and mental health of the president is the people’s concern. Physical challenges are far less worrying than mental ones. Given the high prevalence of dementia among the elderly, I think anyone serving as a judge, Congressperson, President, Vice President, or any other crucial public office should regularly take cognitive exams, at least every 4 years. Any indication of cognitive decline should require resignation or retirement. The results don’t need to be released publicly, but they should be given to some sort of government agency that would privately handle that conversation with the patient.

  5. When you have an individual with a political record of lying exaggerating along with being racist you know that the system is headed for a huge crash. Fasten your seat belts.

  6. Is this really the standard? “Under the American Rescue Plan, anyone can qualify for preferential treatment if they claim to be part of a group that has “been subjected to racial or ethnic prejudice or cultural bias within American society.” “

    Can I ride on the backs of my Irish and Italian great grandparent immigrants to jump in front of the line? What % of Americans would not fit into this preferred class?

    1. Absolutely! My ancestors were German Serfs (slaves to the local overlord, consigned to work the land until we dropped). My later ancestors fought and died so that no American would have to suffer the same. For my family’s oppression, suffering, and hardship I demand reparations!

  7. It is ironic that the Left seeks to instill systemic racism.

    – They racially discriminate against Asians and whites in university admissions and hiring practices. This is the subject of multiple lawsuits (see Harvard, etc.)
    – They changed the admission rules in Thomas Jefferson High School in order to reduce the number of Asians in attendance. Instead of admission practices being strictly an academic meritocracy, they required the top 1.5% of middle school graduates from all surrounding school districts. That means that the top 1.5% of an under performing school would get in, at the expense of those with better grades and academics at an Asian majority middle school. This is currently the subject of a lawsuit.
    – They cut classic literature based on the white race of the authors
    – They create racially segregated dorm rooms, graduations, classes, discussion groups, hiking groups, etc.
    – They create curriculum that is blatantly racist against whites, such as Critical Race Theory, which teaches that blacks are born oppressed and whites are born oppressors. They force white students and employees to “apologize” to black students and employees, where CRT is taught.

    The list goes on and on.

    There were no laws that discriminated against blacks currently in America. There were disparities, which are easily predictable with the shocking popularity of single motherhood in black communities. This produces poor outcomes in offspring. It’s not “the system” that’s stacked against black people. It’s being born into a single parent household, in a high crime neighborhood, with intense peer pressure to slack off at school or drop out.

    When the pressure among your family and peers is to study hard, stay out of trouble, and work hard, you are statistically likely to have a middle class life, regardless of race. This is why African immigrants with conservative values do so much better here than blacks born here.

    If the pressure among your family and peers is to slack off in school, have kids young and out of wedlock, speak improperly, be late, be irresponsible, do drugs, and otherwise act irresponsibly and self destructively, then you are statistically likely to be poor and/or have a criminal record, regardless of race. (See high crime poor white neighborhoods bombed out with the opioid epidemic.)

    It really is that simple, stupid.

  8. Biden administration engaged in systemic gender and race discrimination to implement

    There are elements of the Democrat Party that have not changed since slavery, followed by reconstruction and the KKK. Racism springs its ugly head in the Biden administration, which was engaged in “engaged in systemic gender and race discrimination.”

    1. I could even justify priority for vaccines given to the more susceptible to terrible covid outcomes, as black people seemed to be more likely to die with covid. I cannot understand the justification for restricting white male business owners because they were advantaged in the past.

      I am sick to see less qualified women leapfrog over better qualified men to supposedly address some injustice someone experienced previously.
      I’m over 50 and experienced little if any discrimination. These “targeted remedies” only hurt the credibility of all professional women today and does nothing for their elders. This never ends and differences cannot be simultaneously “our strength” and Damocles’s sword.

      1. YeahYouRight, my wife was hired out of school to be the boss of a major department for one of our major companies. It covered an entire floor of a skyscraper.

        She was taken to the floor so that she could be shown around. There were loads of men sitting in little cubicles throughout the room. They had never seen a woman in that department. She put her things on an empty cubicle and the man in the adjoining cubicle made a nasty crack saying she was the token woman replacing a man.

        She responded that she was the token woman and a token Jew. Then she pointed to the corner office being painted and told the employee, ’That is my office being painted, I’m your boss.’ She is not American and she faced nothing but challenges her entire life, far worse than what we generally see in America. She came with no money, had been refused another job because of discrimination and was a woman. Victimhood must end.

        1. You are a fraud That story, likely made up. Most cases of racial discrimination, when investigated, turn out to be fake – usually perpetrated by blacks and other minorities to further pressure on government and business owners or college administrators to continue race based set aside and affirmative action type programs.

          1. Lack of Truthbetold, it is a true story. Discrimination against Jews is well known. If you don’t know about it take a book out of the library. There were very few formally trained persons in her field at the time. She was discriminated against by one company, so she found another. There were almost no women in the field at the time. The former company lost out on a good employee. The latter benefitted.

            The government was not involved in the case, nor should it have been involved. It didn’t have to be. There are alternatives.

    2. “There are elements of the Democrat Party that have not changed since slavery…”

      The Democrat party has not changed since 1928 with only two exceptions. When the 13th Amendment abolished their ability to own slaves personally, they set about growing government so large that all working class people would be perpetual slaves. When they discovered in the 1960s that their “affirmative action group” the KKK was causing them to lose elections, they simply flipped their anti-black messaging to anti-white/white guilt messaging and, Presto! 90% of black Americans left the party of Lincoln for the party of free stuff and “stick it to whitey!”. LBJ was so impressed with this racist ju-jitsu that he famously said, “I’ll have those [offensive word for black Americans] voting Democrat for 200 years!

      The platform of the Democrat party is inherently racist and totalitarian (pro-slavery). Always was, still is, and always will be. That’s why everything they say HAS to be a lie – because if they admitted what they are about, nobody but a few Hollywood nut cases would vote for them.

    3. The Democrats will have to keep changing who they discriminate against (but it will always be someone) in order to achieve their main goal: To get re-elected. In order to have everyone like you, someone will always have to get the short end of the stick. It’s just whose turn is it this year? Keep watching. They will throw anyone/any group/any ethnicity under the bus in order to keep the other 90% happy. How shallow is that? Sorry yet?

      1. ” Sorry yet?”

        Regular gas 1 year ago: $1.964
        1Month ago: $2.885
        Currently $3.041

        Trending upward rapidly. The Democrats complained about Trump being too nice to Russia but he was helping bankrupt them. Today with Biden acceptance of Nord Stream2 and rejection of the Keystone pipeline along with his other plans he has made Russia much stronger and pushed them into the Chinese camp. That also caused tremendous damage to NATO and created threats to the Ukraine.

        1. And continuing his “make America weak again” policies:

          Biden just proposed a *doubling* of tariffs on Canadian lumber. This at a time when the supply of lumber is low and prices are sky high, the cost of new home construction is rapidly rising, and the cost of building a deck is ridiculous.

          A tariff is a tax. This one in particular is a tax on the middle class. So much for Biden being a champion of the middle class.

          1. Sam, I follow principle, but sometimes one has other principles that conflict and one has to maneuver around. Staying on a fixed course doesn’t account for the errors in the navigation equipment and leads to failure.

            In general tariffs are not a good solution until they are.

            In Biden’s case this doubling of tariff’s doesn’t sound good. I have not heard the logic behind it but higher lumbar prices lead to a lot of other issues.

            Examples: It can increase shortages of housing and therefore more homeless people. It can place a limitation on a large portion of our GDP so out productivity is reduced. It causes other products to be used that may not be as good.

            The artificial control of the many small economies that make up our economy causes dysfunction. Almost everyhing Biden has done whether knowingly or not is destructive to the United States of America,

  9. C’mon, man. We all know Biden is useless. He’s just a place holder for Kamala and the radical left. Kamala is the real president, so let’s just call it for what it is. Let Uncle Joe go back to sleep.

  10. A restaurant should succeed or fail based strictly on the quality and taste of the food it serves. I’m white, but 90% of my restaurant spending goes to Vietnamese and Latin American restaurants that serve excellent, flavorful food. No government program will compel me to spend money at a restaurant with mediocre or sub-par food.

  11. There was a time when JT would blogged about this:

    “As Anger Toward Belarus Mounts, Recall the 2013 Forced Landing of Bolivia’s Plane to Find Snowden”

    “What Belarus did, while illegal, is not unprecedented. The dangerous tactic was pioneered by the same U.S. and E.U. officials now righteously condemning it.”

    https://greenwald.substack.com/p/as-anger-toward-belarus-mounts-recall

    Excerpt:

    “The blatant double standards the U.S. and Europe have endlessly tried to impose upon the world — whereby they are freely permitted to do exactly what they condemn when done by others — is not just a matter of standard lawlessness and hypocrisy. While there was extensive coverage in the Western press on the downing of Morales’ plane, there was not even a fraction of the media indignation expressed over the actions by their own governments as they are now conveying when the same is done by Belarus. In Western media discourse, only Bad Countries are capable of bad acts; the U.S. and its allies are capable, at worst, only of well-intentioned mistakes. Thus do the exact same actions by each side receive radically different narrative treatment from the Western press corps.

    “When the U.S. media helps to perpetuate this narrative, it deceives and misleads the audience they purportedly inform by concealing the bad acts of the U.S. and implying if not stating that such acts are the sole province of the Bad Countries who are adverse to the U.S. Doing so both enables rogue nation behavior by Western powers and implants jingoistic propaganda. It is hard to imagine a case where this dynamic is more vividly present than this outpouring of outrage at Belarus for doing exactly that which the U.S. and Europe did to Bolivia in 2013.”

    You took a wrong turn somewhere, JT.

    I think of the quote posted by Jeff Silberman:

    “Every man is guilty of all the good he did not do.” — Voltaire

  12. “Edward Snowden
    @Snowden

    America’s political power struggle has never been about conservative versus liberal as much as the owner versus the owned. The whole Washington opera consists of two costumes shared by the same club—and you’ll never be a member.

    Don’t let them divide you from your neighbor.

    5:43 PM · May 16, 2021·Twitter Web App”

    https://twitter.com/Snowden/status/1394061037968805889

  13. GENERAL WELFARE

    ALL – WELL – PROCEED

    Congress may only provide the same dollar amount to ALL and every citizen, and Congress may not fund or otherwise participate in the operations of private enterprises, which constitute private property, and which do not constitute public property.

    Congress has no power to establish a Small Business Administration or any other agency, department or organization to conduct enterprise operations or to regulate enterprises.
    __________________________________________________________________________________________________________________________________________________

    Congress has the power to tax for ONLY “…general Welfare…” omitting and, thereby, excluding any power to tax for individual welfare, specific welfare, redistribution of wealth, charity or favor.

    Congress has the power to regulate ONLY the value of money, commerce among the several states, and land and naval Forces.

    Per the 5th Amendment, the right to private property is not qualified by the Constitution and is, therefore, absolute, providing Congress no power to “claim or exercise dominion” over private property.
    __________________________________________________________________________________________________________________________________________________________________

    Article I, Section 8

    The Congress shall have Power To…provide for…general Welfare of the United States;…

    To regulate Commerce with foreign Nations, and among the several states, and with the Indian Tribes;

    To coin Money, regulate the Value thereof,

    To make Rules for the…Regulation of the land and naval Forces;

    1. Section 10
      Clause 1
      No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

      No State shall—-pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts,

      contracts baby your first last and only protection against the crap of interpretation and spewing bs everywhere.

  14. Better solutions that will last longer: fully fund the DOJ’s Civil Rights Division and make them totally independent of the very politicized U.S. Department of Justice. This is the same DOJ that refused to enforce Reagan’s torture treaty, torture statutes and alleged felonies by Bush officials – except for the CRD it’s a political body, not a law enforcement agency. The premise of our American constitutional rule of law system is that nobody, not even presidents, are above the law. The DOJ has abdicated that oath sworn duty (Title 5 US Code 3331).

    Also waive all “appeals court costs” for non-financial civil rights lawsuits. Motivated plaintiffs can solve this better than Congress or a state legislature.
    This solution also is more precise in targeting real problems. A plaintiff harmed (or having their rights violated) will always win long term because they lost the most. This will minimize frivolous complaints and focus on the real harms.

  15. While bias is intrinsic, prejudice is progressive. Diversity [dogma] (i.e. color judgment) normalizes adversity.

  16. One can only wonder what the reaction might be if vaccines or pandemic relief money was only offered to whites?

    It’s pretty easy to spot political bigotry by simply substituting a difference race in the conversation.

    1. The racist designation is “people of white”, or, alternatively, white privileged, not to be confused with Jew privilege that was in common use with a similar ideological bent and motive. Baby Lives Matter

    2. “Historically,” white males are just the ones that pay for all of these #*&! freebies. Sadly, “currently” also applies to this welfare spending spree. I want some darn equality in people paying taxes!

  17. Government program can have to preferences. Stoopid policy by stoopid, hateful people.

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