Equal Protection? Or Discrimination?

Does the Equal Protection Clause of the 14th Amendment forbid the government to address problems caused by decades of unequal treatment? One off-the-tracks court apparently believes the answer is yes.

The Supreme Court has effectively ended most affirmative action programs, and now a federal judge has handed down what has been labeled a “White grievance ruling,” holding that the Minority Business Development Agency cannot focus on minorities, and must open its doors to every race–i.e., White guys.

I am not making this up.

U.S. District Court Judge Mark Pittman (a Trump appointee) ruled that the Minority Business Development Agency (which has been working with minority-owned businesses for 55 years) must open its doors to “every race,” in a case brought by a group of White plaintiffs who argued that the agency’s focus on minority businesses constituted discrimination against White people.

Pittman is the judge who killed Joe Biden’s student debt relief, and ruled that Texas couldn’t ban teenagers between 18-20 from carrying concealed weapons.

As one relatively intemperate pundit reported (no link available and “F bomb” omitted):

In his 93-page opinion… the judge ruled that the agency’s presumption that businesses owned by Black, Latino, and other minorities are inherently disadvantaged violates the Constitution’s equal protection clause. Further, he permanently prohibited the agency’s business centers from extending services based on an applicant’s race. In one truly infuriating passage, Pittman wrote: “If courts mean what they say when they ascribe supreme importance to constitutional rights, the federal government may not flagrantly violate such rights with impunity. The MBDA has done so for years. Time’s up.” Rarely does diction in a judicial ruling trigger a Looney Toons-style reaction complete with steam coming out of my ears and my face turning red with rage but wow! That did it!

This ruling is the latest in a string of judgments that have blown up federal affirmative action programs following the precedent set by the conservative-majority Supreme Court ruled against Harvard and the University of North Carolina using race-conscious admissions last June. The conservative public interest law firm Wisconsin Institute for Law & Liberty, who represented the White plaintiffs, was naturally ecstatic about the ruling. One of the firm’s attorneys, Dan Lennington, said, while somehow keeping a straight face: “No longer can a federal agency only cater to certain races.” This man really said “cater”! About America’s relationship to minorities! I’m going to stop writing now before I have a stroke.

I’m not having a stroke, exactly, but it is clearly past time to address a profoundly important issue–does the Equal Protection Clause forbid lawmakers from trying to solve (or at least ameliorate) specific inequities?

Do government efforts to combat disease A constitute discrimination against diseases B and C? Was the (now eviscerated) Voting Rights Act unfair to the states required to get pre-clearances due to past misbehaviors, since states that hadn’t purposely prevented Black folks from voting weren’t required to get such permissions?

You can undoubtedly come up with other examples.

Do some efforts to address past inequities go too far? Absolutely. It is always appropriate to examine programs that are intended to remediate past misbehavior, to ensure that those programs aren’t themselves violating Equal Protection. There are lots of gray areas, lots of legitimate differences of opinion based upon the specifics of the program being examined.

But this opinion really does seem to be–in the words of the quoted pundit–an example of White grievance. How dare the government try to help minority businesses that have demonstrably been disadvantaged through slavery and Jim Crow? How dare the government concede the ongoing effects of years of White privilege, and try to even the playing field?

It is certainly possible that some aspects of the agency –some programs–go too far, but finding that the agency’s mission violates Equal Protection is–in my humble opinion–evidence of racism and a total lack of basic legal reasoning. (In law school, we learn that there is no right without a remedy...)

An old friend of mine–a Republican, from back in the days when “Republican” didn’t mean “member of a racist MAGA cult”–used a sports analogy to point out that government is supposed to be an umpire–not a player on the field. Umpires and referees are supposed to ensure fair play. I don’t know much about sports, but I’m pretty sure that in basketball, when a member of one team fouls a member of the other team, the one who was fouled gets a free throw or two. It’s an effort to compensate for harm done by the foul.

Judge Pittman would evidently label that free throw discriminatory …


  1. Thanks to the Republicans packing the Federal Courts with nut cases, we will live with lots of crazy crap for a long time.

  2. Maybe I’m crazy, but isn’t it called the Minority Business Development Agency for a reason? That its focus is inherently on minorities? And don’t even get me started on that “catering” bit… Pardon me, I’m going to go drop a couple of F bombs.

  3. That judge’s ruling will make perfect sense to those who believe that slavery gave Black folks a leg up and redlining was just good business and loan refusals to people of color was done purely on the basis of fiscal responsibility, and who buy into all the other excuses for punishing everyone “other.” It will make perfect sense to those who are ignorant of history, unconcerned with the suffering of others and fearful of living on a level playing field. In other words, it will make perfect to the average MAGA voter.

  4. Look at the Middle East now. War over Muslim and Jewish grievances. Who does white grievance surprise?

    That however doesn’t change the words in the Constitution.

  5. I’ll get the silly thing out of the way first. If you’d ever played basketball (or any other sport), you’d know that most fouls aren’t even called.
    On the more serious side, it won’t be long before the current majority becomes a minority. So what will those white guys do when they suddenly have a new opportunity? If you think they will be so noble as to say, “Treat all applicants equally. I can’t accept any preferential treatment.” I have more than one bridge to sell you. One thing I have learned in my life is that what goes around comes around. We need to do something to help all those Federalist Society judges find the light. Maybe expand SCOTUS to match the number of circuits?

  6. What is utterly missing on the MAGA/ white grievance side of the aisle is any sense of compassion for fellow human beings who are hurting.
    Compassion is a spiritual gift bestowed upon those who have tasted defeat and tragedy themselves, lived to see another day, and have reflected on it. When it’s missing in a person or a population, that’s a hint that they may have been only privileged themselves, or that they are aggrieved about their own losses and want to find a scapegoat to take it out on. (See Leviticus 17 in the Bible…)
    Ironically, the winners and the aggrieved losers become the new aggressors.

  7. Wait….are you saying the Equal Protection Clause should equally protect ALL people? That’s silly – it was meant to only protect white males.

  8. Settle down, Judge!

    In 1969, Republican Richard Nixon created the Minority Business Development Agency (MBDA) through an executive order. Since then, it has focused on minority-owned and women-owned business entities.

    The agency also covered Indians and ex-felons. All other agencies were dedicated to white-owned business entities—all of them!

    The fact this judge resides in Texas is not surprising, seeing that minority-owned businesses are probably plentiful in Texas, which upsets the MAGA whites.

    We need to revamp the court system so locals can vote on the judges instead of being appointed by the POTUS. Also, the judges must rotate every four years versus a lifetime appointment. The Federal Society judges know how to rig the system.

    Nixon’s executive order:


  9. Every time there is a disturbing decision “down ballot” in the Federal courts, I check who appointed the judge. Nine out ten times it is Trump or Bush. Time to get creative over how judges get appointed…or, maybe it is too late. We have the same thing here in NC with out judges, too.

  10. Efforts to “right wrongs” have taken shape, unfortunately, with consequences that do the opposite. Case in point: the federal program to aid Black farmers who, over decades, were denied access to loans and other sources of support, was challenged on similar grounds and so the door was opened to all farmers and what happened? Large farms, owned by white folks, were the beneficiaries and Black folks were, once again, lacking the assistance they needed to file for benefits, wind up at the end of the line as the funds are depleted.

    Of course, we should be able to help those who were harmed by so many acts of commission and omission…..

  11. “”” old friend of mine–a Republican, from back in the days when “Republican didn’t mean ” member of a racist MAGA cult”.,,,,,,,

    Such a statement as the above requires one to forget about Nixon’s Southern Strategy.

    When we forget about the past and whitewash history,we get a Democrat administration that willfully facilitates genocide abroad and the public accepts it business as usual.

  12. Ian — come down off your high horse! I guess you forgot all the student protests, college presidents being fired and voters voting “undecided” when you wrote: “the public accepts it business as usual.” Many of us Democrats hate what is happening in Gaza and want Biden to put BB’s balls in a vice. But that doesn’t mean anyone here (in this blog) is “whitewashing history.” There are degrees of unfairness and Nixon was a lightweight compared to Trump and MAGA cult. I don’t think Nixon ever actually aspired to being a dictator and he never entertained Castro or Idi Amin at San Clemente.

  13. The courts are over reaching and engaging in dicta at an unprecedented level. They are destroying a century and a half of precedent and procedural practice (I.E. self-enforcement of section 3 and the 14th amendment in general). This is now endemic in courts with Trump appointees. The big picture revealing a piece meal destruction of the 14th and 15th amendments. Two of the three “National Supremacy Amendments” . Which have no expiration dates. But which those seeking to destroy the federal union once again find an obstacle.Same elements desiring to so chaos and anarchy. Not just the courts are to blame. I listened to the oral argument by Colorado counsel in the recent ballot appearance case. No mention of the many times presidential candidates have banned from ballots for non-section or no reasons. Is the court going to over reach again if a state legislature takes back its the constitutional prerogative to select electors or to outlaw a political party? Will it matter or depend upon whether Trump is the sponsor or an opponent? Instead of their faux concern for chaos SCOTUS has sown the seeds for more. Irony? If Trump becomes our first dictator. He will ignore any SCOTUS decision counter to his desires. It would be nice if philosophers were judging the Constitution instead of lawyers seeking or allowing rewriting it.

  14. I’ll say it again and again, the only thing economics has to teach us is
    “Some is preferred to None. More is preferred to Less, Until it is Too much.”
    How do we know what and when is too much? As Whites become a minority, this question will arise more frequently. What metric are we to use to say we have done the right thing and our efforts to rectify the past are sufficient? When can the patient go home from the hospital? These are legitimate questions that deserve answers rather than rants.

  15. Business as usual = proxy wars. Nixon had his proxy wars in Southeast Asia. Biden has his wars in Ukraine and Gaza.

    Hopefully at some point Biden and BB will face the appropriate consequences. Nuremberg comes to mind. Biden is a buffoon and sociopath, and his supporters are bloodthirsty morons.

  16. Btw. Biden’s SOTU speech was very illuminating. His demeanor was very Hitleresque. The exaggerated gesturing and his authoritative yelling.

    Biden is the Dementia Despot. His embrace for genocide defines him.

  17. You really should consider me the canary in the coal mine. You’re stuck in 2016. You have focused too narrowly against MAGA. During the Interim,much has changed. I don’t expect an arrogant group of privileged and Caucasian old folks to understand anything outside of their narrow purview. You have absolutely no idea as to how alienated you’ve become to the base and minority voters. None at all.

  18. Wow! I’ve never been called a bloodthirsty moron before. That’s very inventive, Ian. I mean that literally. Inventive as in totally made up. By the way, I am one of the minority voters.

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