The Volokh Conspiracy

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Affirmative Action

Court Preliminarily Enjoins Minority Business Development Agency Race- and Ethnicity-Based Funding


The case is Nuziard v. Minority Business Dev. Agency, decided Monday by Judge Mark Pittman (N.D. Tex.); here's the summary of the program:

To qualify as a "minority business enterprise" [under the MBDA], a "socially or economically disadvantaged individual" must manage the business's operations and own at least 51% of it. An individual is presumed to be a "socially or economically disadvantaged individual" if they are Black, African American, Hispanic, Latino, American Indian, Alaska Native, Asian, Native Hawaiian, Pacific Islander, Puerto-Rican, Eskimo, Hasidic Jew, Asian Indian, or a Spanish-speaking American. But any other race or ethnicity is not considered "socially or economically disadvantaged" and thus ineligible for the center's services….

And here's the court's opening paragraph:

The Constitution demands equal treatment under the law. Any racial classification subjecting a person to unequal treatment is subject to strict scrutiny. To withstand such scrutiny, the government must show that the racial classification is narrowly tailored to a compelling government interest. In this case, the Minority Business Development Agency's business center program provides services to certain races and ethnicities but not to others. Because the Government has not shown that doing so is narrowly tailored to a compelling government interest, it is preliminary enjoined from providing unequal treatment to Plaintiffs….

Note that the challenge was just to race- and ethnicity-based funding, so it might be that the preference for Hasidic Jews isn't covered. The term "Jews" can refer both to an ethnic group and a religious group, depending on the context; but "Hasidic Jews" seems to me to refer just to a religious group (albeit one whose self-identification tends to turn  on ancestry as well as religious practice). Nonetheless, the court's analysis suggests that this preference is as unconstitutional as the others.

Congratulations to Richard M. Esenberg, Daniel P. Lennington & Cara M. Tolliver of the Wisconsin Institute for Law & Liberty, and to Jason C. Nash, all of whom represent plaintiffs.