Is Race Discrimination Illegal?

Most Americans naively believe that the 14th Amendment precludes our governments from discriminating on the basis of race. Sadly, that isn’t how the courts see it. Nevertheless, race discrimination is at least sometimes illegal, as a panel of the Sixth Circuit Court of Appeals held yesterday.

The case relates to Joe Biden’s Restaurant Revitalization Fund, the terms of which are discriminatory. Hans Bader has the story:

On Thursday, a federal appeals court issued an injunction against prioritizing COVID relief to restaurants based on their owners’ race and sex, finding that was unconstitutionally discriminatory. The ruling involved the Restaurant Revitalization Fund, a $28.6 billion program in the COVID relief law President Biden signed in March. The law requires the Small Business Administration to give priority to restaurants owned by certain minorities and women, while bumping white males and other minorities to the back of the line, for funds that will soon run out.

It is remarkable that anyone would consider such a scheme to be legal, but I think it is even more remarkable that the Democratic Congress would pass it. How can discriminating against a large majority of Americans be good politics?

The court’s majority opinion issued by Judges Amul Thapar and Alan Norris said that “This case is about whether the government can allocate limited coronavirus relief funds based on the race and sex of the applicants. We hold that it cannot…Since the government failed to justify its discriminatory policy, the plaintiffs will win on the merits of their constitutional claim.”

Hans Bader explains:

This is unconstitutional. Race and sex discrimination are not permitted under the federal Constitution, except for narrow circumstances that don’t apply to the restaurant sector. …

Only evidence of recent, widespread, intentional discrimination against a minority group by the government can justify giving that minority group a racial preference. (See Middleton v. Flint (1996); Brunet v. Columbus (1993); Michigan Road Builders v. Milliken (1987)).

Someone had better tell the Democrats this. They are committed, as a party, to a universal program of race discrimination covering every aspect of our society. And their judges will vote to uphold it, as the Obama-appointed dissenting judge in this case did.

Hans has much more analysis and lots of links here. For the next few years, the courts are going to be a vital battleground as the Democrats try to run roughshod over the Constitution in service of their political agenda.

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