By Rick Esenberg & Dan Lennington
Saturday, April 16, 2022
Cracks are developing in President Biden’s
racial-equity agenda, thanks to business owners, farmers, homeowners, and other
ordinary Americans who stood up to demand equality under the law. Within hours
of his inauguration, President Biden declared a “whole-of-government equity
agenda” to remove the “unbearable human costs of systemic racism.” While the
agenda sounded benign — “Equal opportunity is the bedrock of American
democracy, and our diversity is one of our country’s greatest strengths” — much
of it constituted a “shock and awe” program of explicit racial preferences. It
has not been unusual for government, in handing out benefits and providing
services, to use race as an aspirational “thumb on the scale” or to establish
(or contrive) a remedial justification for its use. But government has been
more reluctant to nakedly hand out things based on the color of the recipient’s
skin. Following the Biden initiative, though, there seemed to be a marked
departure from preferences that required some demonstration of a remedial
purpose rooted in the particular circumstances of the beneficiary. “Equity,” it
turns out, was simply code for reverse discrimination.
President Biden’s two signature legislative
accomplishments — the American Rescue Plan Act (ARPA) and the Bipartisan
Infrastructure Bill — wrote this new form of “equity” into our laws. ARPA, for
example, contains billions in race-based preferences for nonwhite restaurant
owners, nonwhite farmers, nonwhite small businesses, and nonwhite homeowners.
And the Bipartisan Infrastructure Bill included billions more in set-asides for
nonwhite construction companies, labeled by the law as “disadvantaged business
enterprises.” What’s more, billions in infrastructure funds are set to be spent
based on race, with fair-sounding names such as “Digital Equity Grants,”
“Healthy Streets Program,” and “Reconnecting Communities Program.”
Make no mistake: These programs distribute tax dollars
based on race, even though our Supreme Court has continued to make clear that
all racial preferences are highly disfavored and subject to the strictest of
scrutiny.
While the ink was still wet on Mr. Biden’s signature,
Americans started to take notice of ARPA’s race-based provisions. Litigation
was the response. Adam Faust, a disabled dairy farmer from northeastern
Wisconsin, learned that ARPA’s Farmer Loan Forgiveness Program helped all
farmers except white farmers. And Tony Vitolo, a restaurant owner from
Tennessee, discovered that white restaurant owners would be boxed out of a
Covid-19 relief fund based on a racial “priority period.” Both Adam and Tony,
along with other concerned farmers and restaurateurs around the country, with
the help of groups like ours — the Wisconsin Institute for Law & Liberty
(WILL) — successfully sued the Biden administration, putting a halt to billions
in equity spending. A “legal juggernaut” soon materialized, leading to billions
in Biden’s equity agenda being tied up in more than a dozen federal courts.
These initial successes had significant ripple effects.
For example, in July 2021 the Biden administration announced an environmental
project called “Justice 40,” which aimed at delivering “at least 40 percent of
the overall benefits from Federal investments in climate and clean energy to
disadvantaged communities.” Because certain racial groups are presumed to be
“disadvantaged,” this program, which would impact billions in federal spending,
once again proposed racial preferment.
But as the New York Times recently
reported, the Biden administration is “worried that using race to identify and
help disadvantaged communities could trigger legal challenges that would stymie
their efforts.” After specifically noting victories against the race-based
farmer-loan-forgiveness program, the Times reports that the
administration will now “step away from race.”
In another ARPA program, the Homeowner Assistance Fund,
Congress ordered the Department of the Treasury to set up a relief fund with a
preference for nonwhite homeowners. Originally, the Biden administration
adopted an explicit racial priority definition identical to the language in the
Restaurant Revitalization Fund. But after that fund’s priority was struck down,
Treasury quietly revised its regulations for the homeowner program. States,
which were set to implement this $10 billion homeowner-assistance fund,
followed suit. Wisconsin, for example, removed its racial priorities after
receiving a warning letter from WILL.
Even the Democrats in Congress got cold feet on racial
preferences in the president’s agenda. In the doomed “Build Back Better Plan,”
House Democrats included a proposal to repeal the race-based
farmer-loan-forgiveness plan and replace it with a race-neutral program.
The administration’s backpedaling does not mean the
threat is over. The U.S. Department of Agriculture continues to implement its
“Equity Commission” and its $1 billion budget to reform “land access.” The
Transportation Department will begin to implement its 10 percent quota for
“disadvantaged” (read: minority-owned) businesses from the Bipartisan
Infrastructure Bill. And Treasury will continue to implement its race-based
mandates from ARPA and execute its own “coordinated strategy to advance racial
equity.”
Some of the proposed “resets” — making benefits available
to members of groups subject to historic discrimination — simply restate the
constitutional sin. While individuals who have themselves suffered
discrimination may seek a remedy, our Constitution does not recognize blood
guilt or favor. Race or ethnicity can almost never be the basis for government
preferences.
While bird-dogging the administration will remain
difficult, especially considering its strategic changes to avoid litigation, it
is worth doing. It required both a civil war and a civil-rights movement to
finally establish that each of us must be treated as an individual and not a
racial archetype. The idea that this bedrock principle can be suspended for
“just a while” to “even things out” is fantastical. Defending that principle
today is the key to protecting our rights tomorrow.
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