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.

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

  1. Just a matter of time before Joe Biden is forced to realize that he is a privileged, white male standing in the way of a woman of color achieving her dream of being president, and he steps down, thus checking his white privilege while giving us a president who found herself in the White House *without having had a single vote cast *for* her in a national election.

  2. If you want to see just how bias and racist gaggle is, (Google) then search for this. “Pictures of white couples.” The vast majority will come back as a mixed couples. Slang / code, for black males with white women.

    Then search for, “ pictures of black couples.” And the vast majority are, just that Black couples. And then! if you wanna see a “Gobbley Gook Explanation” for this blatant-racism by someone that works for Gaggle, by the name of Danny Sullivan, a white guy on TWATTER, go to the link I have provided for you.

    Oh, make sure you scroll down and read the comments that really go after him for lying his ass off, Over on Twatter.

    All of this was brought to my attention by the head of our HR Dept in our, “Family-Owned Oilfield Construction Company.” A decent size company, of 267 employees. HQ in Dickinson ND With offices in WY MT. And we still hire the old-fashion way. None of this new-age racist-Jack-Ass way. Which is the mascot of, and for, the Democrat Party. A “Jack-Ass.”

  3. After participating in and seeing firsthand for 30+ years how affirmative action works in government and how minority business setaside works in government contracting, I can tell you that there is little to no discrimination or racism in US government anymore nor in its doling out of contracts. Many times, less qualified people and businesses have benefited at the expense of those not on the favored list. There is no need to keep these programs going nor to pretend that they don’t exist or “aren’t enough.”

    1. You rather contradicted yourself here. No discrimination according to you, but let’s end the obviously discriminatory govt programs.

      1. Renosablast, good catch. What I meant to say is that the programs have outlived their usefulness. When less qualified are being chosen, then the recipients benefit at the expense of society and better candidates and businesses. The discriminatory programs have been in place for decades and now, it seems that those in power aren’t satisfied unless invoking them on the average person who is seeking help with Covid relief or getting a vaccination (in some states), etc. Who knows when this will end? Predominantly white people but also minorities not deemed worthy enough for these programs (such as those of Arab descent, as just one example, or of Iranian descent) are discriminated against with these programs too. And these programs can displace those poor who have lived in US for generations as poor, by recent immigrants such as Indians who have lived a privileged life and came to America.

  4. Why is it still ok for large corporations to discriminate against whites?

    1. So I p[resume the “No Irish need apply ” criteria apply here for cultural and ethnic discrimination. I won’t be able to avail as I live in the Free Red State of Florida!

  5. Preferential treatment for minorities is why so many Americans are peed-off at how the country is developing. Back in the “civil rights” days, the claim was that blacks, in particular, were being discriminated against and should have equal treatment, That “equal” treatment blossomed into preferential treatment as Democratic-controlled Congresses voted in laws and approved regulations that have turned America into a real “racist” society where the emphasis is on race for anything and everything. As for the Greer case, his restaurant is in Stephenville, a town southwest of Fort Worth. I live in Texas and I guaran-damn-tee you that there are Mexican restaurants on every corner all over the state and many of them are truly prosperous. By the way, “race,” when it comes to Hispanics, in Texas in particular is meaningless because there are millions of Texans with Hispanic last names whose ancestry is European. The irony is that a white person with a Hispanic last name can be eligible for these giveaways while a person who is 90% white but whose mother married another white with a Hispanic last name is eligible. This country is truly FUBAR.

    1. The Dems in power and the media have excelled in stoking the flames of racial hatred since Obama took office in January 2009.

    2. Let’s boil your comment right on down to gravy. “ This country is truly FUBAR.”

      That’s it. Out of every single word, line, and 1 leviathan size paragraph, When it should have been 3 paragraphs, Those 5 words are perfect and rule out all the other words.

    3. The legal basis for racial preferences is based on the 14th Amendment to the Constitution, authorizing Congress to make and pass laws necessary to remove the ‘vestiges of slavery.’ But Congress went well beyond that over the years and gave preferences to every “minority” imaginable. When challenged on the basis that there is no legal authority for giving preferences to anyone other than the descendants of slaves, they changed the focus to “diversity” claiming that there is some inherent societal value in that, and a massive diversity industry quickly emerged. So yes, we have ppl who recently to immigrated to the U.S. reaping double-benefits. First they win a coveted “diversity lottery” immigration ticket, then once they get here, receive additional benefits in terms of a multitude of affirmative action set-asides. But Congress could change all that, and revert to the original Constitutional authority to provide AA benefits ONLY to the descendants of slaves, and for a limited time period. But that would take guts and your politicians have no guts. Sorry, but you get what you vote for.

  6. How long before the majority of Americans — of all races — realize that the discrimination being practiced by liberals today is same discrimination liberals fought against in the 60s? Only now, discrimination is being practiced under the cover of “equity,” a term meant to confuse the public, who has believed all along that America had achieved equality. We can thank CRT for the infiltration of neo-racism into US society. From academia’s least rigorous and credible disciplines, like women’s and ethnic studies — to the political hacks running the country, neo-racism under the guise of “equity” is all the rage. But if liberals justify racism on any basis today, they’ll have a hard time criticizing it tomorrow, when their political power finally ends. Let’s hope that whoever replaces this current batch of incompetents has the integrity to end once and for all this regime of neo-racism.

    1. Back in the 60’s, it was the GOP that sought civil rights for minorities. The left fought them tooth and nail. Now, the left want you to think they are fighting for minorities but all they are really doing is keeping them in chains with their “programs”. They more things change, the more they stay the same.

    2. Dominion software. Unconstitutional changes to voting at the last minute. Blatant fraud. Judges who block valid lawsuits. RINO collaboration with the democrats…

      Upon what basis do you imagine that the democrats will ever again be out of power?

  7. Well duh! They can’t win the straight, white male vote so they discriminate against them and get their flying monkeys in the press and industry to follow along. Just look at commercials on TV and cable. Wanna guess who’s underrepresented? Yep the largest segment of the population.

    1. What’s ironic is that whites are the people with the most money. You would think they would be pandering to them.

    2. Yes but it’s straight white males who created this sh!t show in the first place. The Immigration Act of 1965, written and passed by whites males in both houses of Congress, turned us from a merit based immigration policy to one based on race. When my great-great-grandparents came to the U.S., there wasn’t any ICE or INS. Immigration was handled by the U.S. Dept of Labor and you had to be sponsored for a job. My GG grandfather’s papers show he was sponsored to work in an iron mine in No. Minn., but he was older and sent back after it was found that he couldn’t handle the work. However, his five sons stayed in the U.S. Now we are bringing in millions of ppl from 3d countries who receive government handouts for generations. And it is both parties who are to blame. When the Republicans had both houses of Congress they could have fixed this but chose not to. Which is why I left the Republican Party and am now a registered independent.

  8. This might just be the reason that the Dems want to pack the court, with four more liberals to rubber stamp their madness.

    1. Ya think? Of course that’s the reason. It was FDR’s reason and it’s the Harris-Biden WH’s goal as well.

  9. QTBIPOC (LGBTQIA and/or BIPOC) and don’t forget Pe, Be, and Ne!

  10. Any body with eyes and a brain can see it. The media is complicit, so the masses believe what the media is spewing which is dividing America more and more everyday….

  11. “President Biden has spoken out often, eloquently and passionately against the “ugly poison” of discrimination and racism in our government.”


    Has Biden ever made an eloquent statement?

  12. This administration is engaging in what the left wing Marxists always do, accuse others of being or doing what they do. By claiming to make amends for past racist policies they blatantly engage in racism and Black or gender privilege. They can call it whatever they like but using race and gender to give preference is and always will be a racist and bigoted policy. But then again this is the Socialist-Democratic party that has long been and remains led by racist politicians intending to capture and enslave through dependency an entire people group using racial and gender preference. Not any difference from Jim Crow laws of the past. The only change is the color of the skin.

  13. the raw racism in these move are astounding. I live in Boston and they just removed the exams from the former exam schools entrance requirements. They are calling it a success because fewer whites and Asians were admitted and more blacks and Latinos were admitted. Nothing about merit or missing kids that were qualified or anything like that – just race.

    It will be interesting to see if it is a success long term, I have my doubts – but more so for horrendous performance of Boston public schools during the pandemic. These public school kids that they admitted have not been in school for 18 months, many of them would not have done well on the exam had they used it in a normal year

    A fine experiment in equity – it is only a kid’s life

    1. SCOTUS has always supported racism exercised against WASPs.
      This will be no different.

      1. I read an article many years ago, so it didn’t include more recent SCOTUS opinions, but it showed that the Court was very quick to discriminate against blue-collar whites, but not so much against their own class. So when you had whites who worked as garbage men, firemen, or in factories, opposing racial preferences, the Court always ruled against them. But when white medical or law students were the ones being harmed, the Court took a more measured stance, ruling that race could be considered as one of a number of factors, but not the only one.

  14. ‘Eloquently’? Are we watching the same foggy, scripted person? Eloquent deception perhaps. Dang. The liberal Kool-Aid must be mighty tasty. The denial of old school Democrats is a dazzling thing to behold. The neural pathways must run deep.

  15. ENOUGH. Chief Justice Roberts had it right. The way to end racial discrimination is to end racial discrimination. All these programs do is stoke the racial divide – which, if I’m cynical enough, seems to be what this administration is trying to do.

    1. It is deja vu all over again. Look back to 1896 and the racist campaign to defeat Populist William Jennings Bryan. Then, as now, the real issue was class, the obscenely rich versus the rest of us. One tactic was to pit black and white farmers against each other so the masses would not compare notes, figure out that we’ve all been screwed and unite in revolt against the robber barons. Look at the corporate and foundation funding for BLM as an example of how elitist, anti-populist, segregation politics works these days. Biden’s racist policies are another front of that divide and conquer war. The more things change, the more they stay the same.

  16. Way to build resentment.

    Keep putting blacks at the head of the line and racists are going to feel that their racism is justified.

    The Dems continue to divide America in the hope of building a big enough coalition to defeat Republicans.

    But with Trump off the ticket, many people are going to evaluate their electoral choices rationally.

    1. mc:

      “Keep putting blacks at the head of the line and racists are going to feel that their racism is justified.”
      It’s a them-fulfilling prophecy. So misguided, so anti- everything that they say they want and so dumb. It’s a mistake to think they don’t want a race war.

    2. Sorry, but Republicans are just as much to blame. When Republicans had both houses of Congress, they could have overhauled the immigration laws, going to a strictly merit-based system, bringing in workers with the skills we need. But they chose to allow the current race-based law to stay in place. And they could have changed the affirmative action laws to allow preferences ONLY for the descendants of slaves, which is the only AA authorized by the Constitution (14th Am.). But again, they lacked the guts to take on the diversity industry and race hustlers. So voting Republican turned out to be pointless. They talked a good game but weren’t willing to do the work. Which is why I left the Republican Party and am now a registered Independent.

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