There are enough destructive and unlawful woke policies going forward these days to keep dozens, if not hundreds, of public interest law firms working full time. I’m happy to report on two recent court successes (for now) in cases challenging such policies.
In Texas, U.S. District Judge Reed O’Connor has issued a temporary restraining order sought by a restaurant owner against the Biden Small Business Administration. The owner challenged the Biden administration’s Restaurant Revitalization Fund which gives priority to businesses owned by women, racial minorities, veterans, and other “socially and economically disadvantaged” groups. Judge O’Connor enjoined the SBA from giving such preferential treatment based on racial and gender classifications.
The plaintiff, owner of the Greer’s Ranch Café, claims to have lost nearly $100,000 in revenue during the coronavirus pandemic. He presented evidence that, because he is White, the entire $28.6 billion in the Restaurant Revitalization Fund might be depleted before his application for relief will be considered.
Team Biden argued that its discriminatory program can survive strict scrutiny — the standard under the Fourteenth Amendment for judging racial classifications — because it remedies “the effects of past and present discrimination.” The court rejected this contention. It stated:
[The government’s] evidence largely falters [because]. . .it lacks the industry specific inquiry needed to support a compelling interest for a government-imposed racial classification. While the Court is mindful of. . .statistical disparities and expert conclusions based on those disparities, “[d]efining these sorts of injuries as ‘identified discrimination’ would give . . . governments license to create a patchwork of racial preferences based on statistical generalizations about any particular field of endeavor.” Croson, 488 U.S. at 499; see also Adarand, 515 U.S. 200 (extending Croson’s holding to the federal government). “Racial classifications are suspect, and that means that simple legislative assurances of good intention cannot suffice.” Id. at 500.
Thus, the Court concludes that the government has failed to prove that it likely has a compelling interest in “remedying the effects of past and present discrimination” in the restaurant industry during the COVID-19 pandemic.
The other case arises from Virginia. It’s a challenge to the race-based admissions policy of Thomas Jefferson High School for Science and Technology (TJ) — rated the best public high school in the country last month by U.S. News and World Report.
The Fairfax County School Board scrapped the standardized test that TJ used to select students objectively (and that probably helped make the school as good as it is) in favor of a system that distributes the vast majority of slots to the top 1.5 percent of students at each of the county’s middle schools.
The new policy disfavors Asian-Americans. Thanks to the objective test-based admissions policy the School Board has now discarded, they make up more than 70 percent of TJ’s student.
Accordingly, a group of Asian-Americans sued the School Board. It moved to dismiss the lawsuit. But Senior Judge Claude Hilton, a conservative who has been on the bench since 1985, denied the motion.
Judge Hilton was not persuaded by the School Board’s claim that the policy is racially neutral. It may be neutral on its face, but, said Hilton, “Everybody knows. . .that it’s designed to affect the racial composition of the school.”
Everyone does know that. And adapting a facially neutral policy for the purpose of favoring members of one race at the expense of another is intentional discrimination.
Literacy tests for voting in the Jim Crow South were sometimes facially neutral. So was the poll tax. But the intent behind these devices was to exclude Black voters and to preserve political control by Whites.
Judge Hilton’s ruling means the Asian-American plaintiffs can proceed with their case. It doesn’t mean they win.
A trial will likely take place, at which plaintiffs can present evidence that the change in admissions policy was motivated by race. It’s my understanding that public statements of school board members provide ample evidence of this.
In the meantime, Judge Hilton declined to enjoin admissions based on the new policy for the upcoming school year. He found that such an injunction would be too disruptive at this relatively late date.
I understand this ruling and it may be correct. However, racist admissions policies are sufficiently pernicious that a very strong showing of “disruption” should be required before they are allowed to remain in effect even for one school year.
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