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 …