Affirmative Action

Sixth Circuit Enjoins Use of Race and Sex Preferences for Coronavirus Relief Funding

A divided panel grants a preliminary injunction against privileging relief applications based on the race or sex of the applicant.

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Yesterday, a divided panel of the U.S. Court of Appeals for the Sixth Circuit granted a temporary injunction barring the Small Business Administration from prioritizing applications for COVID-19 relief funding based upon the race or sex of the business owner applying for the relief. Judge Amul Thapar wrote for the court, joined by Senior Judge Alan Norris. Judge Bernice Donald dissented.

Judge Thapar's opinion in Vitolo v. Guzman begins with a simple and straightforward description of the case and holding: "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."

The policy at issue prioritizes applications for relief funding from businesses owned by women and racial minorities. The American Rescue Plan Act of 2021–the most recently enacted coronavirus relief bill–authorized $29 billion for restaurant owners suffering economic hardship. The money is allocated to qualifying businesses on a first-come, first-served basis until the funding runs out. The catch, however, is that for the first 21 days of processing applications, the SBA will only consider applicants that are at least 51 percent owned and controlled by women, veterans or the "socially and economically disadvantaged." This latter category is defined to cover those who have been "subjected to racial and ethnic prejudice" or "cultural bias," and the SBA presumes that members of specific racial and ethnic groups satisfy this criterion. According to the plaintiffs in this case, this policy constitutes unconstitutional race and sex discrimination, as those who are not members of the relevant groups risk missing out on relief funding.  In its defense, the government acknowledged the use of race and sex to prioritize relief applications, but argued that the limited use of race and sex here was nonetheless constitutional.

After addressing the plaintiff's standing and the government's claim of mootness, the majority turned to the Equal Protection analysis, finding that the government had failed to demonstrate that the use of race and sex served a compelling (or even substantial) governmental interest as well as that the use of race and sex here was not sufficiently tailored to satisfy heightened scrutiny.

Although the government argued the policy was justified to remedy past societal discrimination, the majority noted that the Supreme Court has held that the use of race to remedy past discrimination only when three criteria are met: 1) "the policy must target a specific episode of past discrimination," and not societal discrimination at large; 2) "there must be evidence of intentional discrimination in the past," not merely statistical disparities; and 3) "the government must have had a hand in the past discrimination it now seeks to remedy."  The court further concluded that even if a compelling interest had been shown, the policy in question was not narrowly tailored to satisfy that interest.

Writes Judge Thapar:

The stark realities of the Small Business Administration's racial gerrymandering are inescapable. Imagine two childhood friends—one Indian, one Afghan. Both own restaurants, and both have suffered devastating losses during the pandemic. If both apply to the Restaurant Revitalization Fund, the Indian applicant will presumptively receive priority consideration over his Afghan friend. Why? Because of his ethnic heritage. It is indeed "a sordid business" to divide "us up by race." League of United Latin Am. Citizens v. Perry, 548 U.S. 399, 511 (2006) (opinion of Roberts, C.J.). And the government's attempt to do so here violates the Constitution.

Turning to the sex-based preference, the majority also concluded that the government failed to satisfy either prong of the Equal Protection analysis there either.

Judge Thapar's opinion for the court concludes:

It has been twenty-five years since the Supreme Court struck down the race-conscious policies in Adarand. And it has been nearly twenty years since the Supreme Court struck down the racial preferences in Gratz. As today's case shows once again, the "way to stop discrimination on the basis of race is to stop discriminating on the basis of race." Parents Involved, 551 U.S. at 748 (plurality opinion).

The government shall fund the plaintiffs' grant application, if approved, before all later-filed applications, without regard to processing time or the applicants' race or sex. The government, however, may continue to give veteran-owned restaurants priority in accordance with the law. This preliminary injunction shall remain in place until this case is resolved on the merits and all appeals are exhausted.

As noted above, Judge Donald dissented. Her dissent begins:

It took nearly 200 years for the Supreme Court to firmly establish that our Constitution permits the government to use race based classifications to remediate past discrimination. See Regents of Univ. of Cal. v. Bakke, 438 U.S. 265 (1978). It took only seven days for the majority to undermine that longstanding and enduring principle.

The majority's conclusion that Plaintiffs are entitled to injunctive relief requires us to make several assumptions. The majority's reasoning suggests we live in a world in which centuries of intentional discrimination and oppression of racial minorities have been eradicated. The majority's reasoning suggests we live in a world in which the COVID-19 pandemic did not exacerbate the disparities enabled by those centuries of discrimination. The majority's reasoning suggests that we live in a world in which Congress passed the Restaurant Revitalization Fund ("RRF") not to aid the nation's economic recovery, but to arbitrarily provide special treatment to racial minorities and women.

The majority's reasoning leads it to a puzzling, if not predictable, conclusion that the twenty-one-day priority period in the RRF—a short-term, narrowly tailored, carefully calibrated measure designed to assist businesses most devastated by the pandemic—is unconstitutional. Because I find that the RRF is a carefully targeted measure  necessitated by an unparalleled pandemic, and because Plaintiffs have not demonstrated irreparable harm or a likelihood of success on the merits, I dissent.

While acknowledging that the case presents "controversial, thorny, and unsettled" questions of constitutional law, Judge Donald objected to the court's resolution of these questions in the context of an emergency appeal of a denial of an injunction.

Her dissent concludes:

The majority states that "[w]hen the government promulgates race-based policies, it must operate with a scalpel." But what good is a scalpel if the government is stripped of its other policymaking tools. In this case, the government was uniquely situated to identify a pattern of nationwide discrimination and created legislation designed to provide a temporary remedy. That is not unconstitutional; that is the government doing its job. We are not in the business of telling Congress what it cannot do except in the most extreme of circumstances.

For the foregoing reasons, I would hold that Plaintiffs are not entitled to injunctive relief, and that their emergency motions should have been dismissed.

On a final note, I reiterate that this case should have never come to this point. As I mentioned above, we should have disposed of the initial emergency motion on narrow jurisdictional grounds. But because of the Court's unusual procedure in handling this appeal, we are now left with a binding published opinion, etched in the stone of time. I urge my colleagues on this Court to consider establishing clear procedures for  emergency matters so that we are not again placed in a position where we must address constitutional questions of profound importance on a moment's notice without development of the record.

I dissent.

Two other little tidbits. First, I found Judge Donald's invocation of Bakke at the start of her dissent to be curious. While it is certainly true that Justice Brennan's plurality endorsed the use of racial classifications for the purposes of remedying past discrimination, Justice Powell's controlling opinion was far more circumspect and specifically rejected the claim that the University of California's use of racial classifications in admissions could be used to redress societal discrimination or counter the "historic deficit of traditionally disfavored minorities in medical schools and in the medical profession." Whatever arguments there may be that the use of race here is constitutional, I am not sure Bakke is the best case to help make that point.

Second, while overturning the work of the district court, Judge Thapar's opinion drops a footnote defending the work of trial courts. Footnote 2 reads: "While we  ultimately disagree with the district court, we appreciate the district judge's diligence in handling this matter. District courts are extremely busy, and this judge is no exception. Yet he moved promptly at every turn and made sure to provide the parties with thorough rulings." This recognition that federal judges generally do their best to reach the proper outcome, and that judges can reach differing conclusions in good faith, is most welcome.

NEXT: Wrongly Ejecting Teenager from Sports Club for Sexual Misconduct May Be Intentional Infliction of Emotional Distress,

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  1. The dissent seriously misrepresents the majority decision.

    “The majority’s conclusion that Plaintiffs are entitled to injunctive relief requires us to make several assumptions. The majority’s reasoning suggests we live in a world in which centuries of intentional discrimination and oppression of racial minorities have been eradicated. The majority’s reasoning suggests we live in a world in which the COVID-19 pandemic did not exacerbate the disparities enabled by those centuries of discrimination. The majority’s reasoning suggests that we live in a world in which Congress passed the Restaurant Revitalization Fund (“RRF”) not to aid the nation’s economic recovery, but to arbitrarily provide special treatment to racial minorities and women.”

    The majority decision was quite clear about its basis, and nothing quoted above played any part in it, being entirely irrelevant.

    1. Well, if it’s OK for Harvard to use brute force methods to depress the Asian acceptance rate then it’s probably worth a try. The dissent would just answer the compelling interest question differently.

  2. Could this be the Affirmative Retribution case SCOTUS uses to end it?

    1. The Biden administration is being gross enough with its racially discriminatory policies that they might bring that on. Not even the tiniest bit of subtlety, just, wham, explicit racial discrimination.

      It’s like they didn’t mean for the policy to survive review; Is it possible they want the Court to strike down affirmative action, to have it for a campaign issue?

      1. That would be nice

        Because, given that CA voters just re-defeated “affirmative action”, this is clearly an area where the Democrats will lose, hard, at the ballot box.

        So, with Kennedy and Ginsburg gone (and O’Connor too, for that matter), here’s hoping the SC finally says “no, you can’t discriminate based on ‘race’. Get over it”

  3. The dissent is quite clearly wrong. All the things alleged by the dissent can be true yet the majority’s decision correct. What the dissent is missing is that requested cure can be worse than the disease. Historical injustice is bad. That does not justify “solving” it by creating new injustices.

    1. The dissent obviously thought that the things alleged justify violating the Supreme court precedent on this.

  4. This is my former firm’s good work! It was very clear that the lower court judge either didn’t understand or purposefully ignored that statistical disparities don’t satisfy the intentional discrimination part of the applicable test. All he found was that early COVID relief disparately didn’t help (certain) minority business owners.

  5. The Bakke rationale didn’t involve past discrimination at all. It expressed a view that a state has a heightened interest – at least important, if not compelling – in youth being educated in diverse environments.

    As I’ve shared before, I think that from a Martian’s point of view – the point of view of a completely independent outsider with no stake in social battles or vindicating one side or the other in them – the idea that the state has a heightened interest in diversity when it comes to youth – not just an ordinary one, but a specially heightened one – undercuts the idea that opposition to gay marriage is nothing but animosity and doesn’t even have a rational basis. I don’t think both can be true. If a state has a heightened interest in diverse schools, it mist have at least a rational interest in diverse homes. And vice versa. Children simply do not change their fundamental biological and psychological nature when they leave home and enter school. The two environments have too many similarities. What is not merely rational but important in one context cannot be completely irrational in the other. And vice versa.

    I think the Supreme Court has to act in a logically consistent way. When its justices don’t – when they claim something is important when that leads to the outcome they want in one context, but then claim something that would seem very similar is irrational and animosity based when that leads to the outcome they want – this is strong evidence they are acting as a political body, not as a legal one.

    The two cases can obviously be distingiished. But if you think it’s important for the students at a boarding school to have a diverse faculty, it must be at least rational to think that they should have diverse care-govers at home. And vice versa. If it’s completely irrational to think that diversity in home environment is a value the state has any business having any interest in, then diversity in a school environment can’t be all that important.

  6. Judge Donald is a semi-retarded black woman appointed by Obama. Her law degree was from Memphis, which, given that blacks get a free 10 LSAT points, means she really belonged at Cooley. It’s no surprise her dissent made zero sense.

    1. Yet somehow, she comes across as smarter than you. Please try harder.

      1. Agreed. The dissent may not be a correct statement of Supreme Court precedent. But the pervasiveness of comments like Aktenberg78’s help explain why people like Judge Donald feel a need to write dissents like this, and why such dissents, independent of their strictly legal merits, have bite.

        1. I wouldn’t entirely rule out that being the point of such comments being pervasive. The supply of (right wing) racists in America falls far short of demand, so the left has taken to manufacturing them, just like the hate crimes attributed to them.

        2. But the pervasiveness of comments like Aktenberg78’s help explain why people like Judge Donald feel a need to write dissents like this…

          Your assertion that judges like Donald are basing their legal conclusions…even in part…on social media comments from a relative handful of unknown contributors doesn’t make them look better. Quite the contrary, in fact.

        3. You’ve got that exactly backwards

          It is the pervasiveness of utterly dishonest, incredibly poorly reason “judicial opinions” written by dishonest creatures like Judge Donald, that drives people to make statements like Aktenberg78’s.

          Judge Donald is an oath breaking, power hungry thug. Her “dissent” basically says “I don’t care what the US Constitution says. I don’t care what the relevant Supreme Court precedents are. I have personal political desires that I want advanced, and I will let nothing get in the way of that.

          What kind of person would treat a creature like Judge Donald with respect?

      2. Just out of a morbid sense of curiosity, exactly what part of Judge Donald’s dissent comes across to you as better than “utterly stupid mumblings of a fumble fingered idiot”?

        Note: dishonestly citing a precedent, or ignoring clear binding precedent, counts as “utterly stupid mumblings of a fumble fingered idiot”?

        So, what parts did she get correct?

        1. What part of Aktenberg78’s comment comes across to you as more on-topic, more cohesive, or more reasoned than Judge Donald’s dissent? What parts did he (or she or they or xi or it) get correct?

          I was making a comparative statement, not expressing a net judgment of the dissent.

          1. More cohesive or well-reasoned? None. About equally poorly reasoned? Yeah.

            1. Do you deny that blacks get free LSAT points, such that, while the white or Asian needs a 175 to get into Harvard, the black can get in with 164?

              1. Not at all. And had you focused on that at the start rather than your ad hominem, Michael (probably) and I (certainly) wouldn’t have had heartburn with your original comment.

                1. Boy when I ran the 800 meters in college I would have liked say a 40 meter head start….given my historically disadvantaged genes …

          2. What part of Aktenberg78’s comment comes across to you as more on-topic, more cohesive, or more reasoned than Judge Donald’s dissent?

            Nobody claimed that his comment was any of those things, so…nice straw man.

            1. Greg J asked what I saw in Judge Donald’s dissent that was “better than” the original comment in this sub-threat. Those are the traits where I think the dissent compares well to that original comment. I pointed at that by echoing the “what part of” phrasing. In my opinion, the only point on which Aktenberg78 rates any better than Judge Donald is brevity.

              1. Greg J asked what I saw in Judge Donald’s dissent that was “better than” the original comment in this sub-threat.

                And you proceeded to not even come close to answering that question, engaging instead in deflection.

          3. None of it.

            I muted him from his first comment after the muting upgrade.

          4. “Judge Donald is a .. black woman appointed by Obama.”
            This is true, correct?

            “Her law degree was from Memphis”
            Also true?

            ” which, give[s] blacks a free 10 LSAT points”
            Also true?

            “her dissent made zero sense.”

            Which is the point being discussed here.

            So, we have 1 true statement made in an offensive manner, 2 other true statements, and an opinion that is not immediately dismissable.

            Does Judge Donald meet that low bar in her dissent? I certainly find her opinions and desires that the Federal Government engage in racial discrimination quite offensive, at least as offensive as calling someone “semi-retarded”. If you were ok with a racist government engaging in racist acts, that would be pretty morally wretched of you, so I hope you’re not going to try to claim her statements are “less offensive”.

            1. The judge’s alma mater and its matriculation policies are absolutely off-topic. The claim about “free” LSAT points is additionally unsupported. You omitted the presumptuous assertion of which law school she “really belonged at”. None of that goes to the merits of the court’s opinion or the dissent, or the original subject of the case. They are simply a form of race-based personal attack on the judge.

              The only part of that first comment that was at all on topic was the assertion that the “dissent made zero sense”. As it was unsupported by any argument or relevant facts, I stand by my earlier assessment. Judge Donald may be wrong on many levels, but she formed an argument that was at least halfway coherent and did not rely on ad hominems.

              1. I wouldn’t say the claim about free LSAT points is totally unsupported. It’s certainly consistent with practice at multiple universities practicing affirmative action.

              2. 1: Lawyers are routinely judged by where they went to school. Especially for judicial nominations (see Scotus and Harvard).

                So when talking about the quality of the judge making the addle-brained dissent, pointing out the judge’s utter lack of academic qualifications is surely on point.

                2: I don’t know that school’s particular admission policies. But if you told me that an honest examination of her school’s admission policies showed that “black” admittees averaged only 10 LSAT points lower than the student body as a whole, I’d be impressed with who little “AA” that school practices.

                Are you trying to claim that her alma-mater does NOT practice any sort of AA?

                3: ” Judge Donald may be wrong on many levels, but she formed an argument that was at least halfway coherent and did not rely on ad hominems”. Well, it relied on dishonestly citing Supreme Court precedent, ignoring the controlling precedents cited by the opinion she was “dissenting from”, and appeals to feelings rather than the law.

                Which makes it at least as low as ad hominem, IMHO

                OR, would you care to tell us which SC precedents she correctly cited? When of the majority’s arguments she correctly attacked? By “correctly” I mean “under teh bounds that a Federal Appeals Court Judge” is supposed to follow when issuing opinions

                I’m open to have pointed out what she said that was relevant and not BS. I’ve just not yet seen anything that meets that low bar

  7. “federal judges generally do their best to reach the proper outcome, and that judges can reach differing conclusions in good faith, is most welcome.”

    Huh? The author must have written an article I didn’t read. The article I read showed a judge trying to make law from the bench. The quotes from the dissenting opinion ignore the points made by the majority, and simply says ‘I don’t like it.’ It is not the job of a judge to redress anything. Is it constitutional – that’s it. Not is it fair, or just or nice.

    1. I believe that quote is referring to the trial court, not the dissent.

  8. “It took nearly 200 years for the Supreme Court to firmly establish that our Constitution permits the government to use race based classifications to remediate past discrimination. See Regents of Univ. of Cal. v. Bakke, 438 U.S. 265 (1978). It took only seven days for the majority to undermine that longstanding and enduring principle.”

    Which “majority” is this idiot taking about? A Scotus majority, or the majority of the appeals court?

    Because when you compare 200+ years to 40, I know which one is “longstanding”. Hint: It’s not the 40.

    So, other than misquoting Bakke, and ignoring the other precedents the majority cited, the idiot has a real case.

    “The majority’s conclusion that Plaintiffs are entitled to injunctive relief requires us to make several assumptions. The majority’s reasoning suggests we live in a world in which centuries of intentional discrimination and oppression of racial minorities have been eradicated.”

    Nope. The majority understands that if your principle is “it’s wrong to treat people differently because of their race”, then you’re not allowed to treat people differently because of their race. Neither positive nor negative.

    And the majority further understands that if you think it’s perfectly fine to give people benefits because of their skin color, because you happen to like their skin color, then there’s no legitimate complaint possible about those “centuries of intentional discrimination and oppression”. Because you’re just whining that the “wrong” people got hurt, not justly pointing out an evil

  9. “ We are not in the business of telling Congress what it cannot do except in the most extreme of circumstances.”

    Wow Judge Donald… and here I was under the impression that the judicial branch’s function was a check on the other branches when they exceed constitutionally allowable actions. Thanks for clearing up my misconceptions.

    1. Gosh, I guess the Judges aren’t going to tell Congress it can’t restrict abortion

      Or write laws like the Defense of Marriage act.

      Or do any other thing that blocks left wing political goals.

      You know, “semi-retarded” seems like a good way to describe someone who writes something like that

  10. The constitution is colorblind — it always has been.
    Two hundred fiddy some years and the Democrats still have not accepted this simple fact.

  11. ” As today’s case shows once again, the “way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Parents Involved, 551 U.S. at 748 (plurality opinion). ”

    That sentiment — expressed often by Republicans — would be worthy of more credit if so many conservatives weren’t such ardent bigots and all other right-wingers were not such consistent appeasers of racism, misogyny, xenophobia, and gay-bashing.

    Carry on, clingers . . . for a bit longer, anyway.

    1. And who decides when “historical redress” is complete? Seriously? Its all bolshevik crap….any differences in society today are due to cultural factors…its pretty obvious

    2. Except they’re not?

      Hope that helps.

  12. This where the legal profession is so off base as most of these judges couldn’t pass eco 101 if their life depended on it. “past discrimination redress”…you idiots..past discrimination is a sunk cost. Unless you can identify an exact person and a recent event its irrelevent and only creates new injustices (often at the expense of “groups” which are blamed for past issues). Govt should not discriminate or pass laws forcing people or firms to and that is it..no more. Disparate impact is such a stupid concept…disparate in context to what? When you apply it across the board it is insanity…in my area most dentist are Italian American…why (who knows)..does that mean discrimination against say Irish Americans? And I don’t even want to go to the media, academia, investment banking,and entertainment which it is obvious Catholics are in short supply. Redress needed? Of course not. The legal side needs to just let people live and get out of all this redress movement..its just marxism plain and simply and belongs in 1920’s Vienna or Russia.

  13. The dissent was terrible — and frightening. The harm was in part justified because these are not “normal times” and Congress didn’t have time to fully consider a race neutral approach?

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