Last Thursday, the 6th Circuit Court of Appeals ruled against the Biden Aministration policy which created a 21 day span of time in which the Small Business Aministration would only process applications for aid from businesses “owned by women, veterans, or socially and economically disadvantaged individuals,” according to the Associated Press. What the AP does not clarify, however, is that if a person is a member of certain minority racial groups, “the Small Business Administration assumes [they] qualify as socially disadvantaged. Indeed, the only way not to qualify is if someone comes forward “with credible evidence to the contrary'” as the majority opinion in the case, Vitolo v. Guzman, makes clear. The funds available to businesses under the COVID bill were limited, and by allowing women and minority owned businesses jump to the front of the line, this policy made it more likely that the cash would run out before being distributed to business owners not born into these categories. The majority of the 6th circuit came to the conclusion that such a policy was a blatant violation of equal treatment under the law and held that the federal government did not have the right to implement it.
The AP is quick to quote the dissenting Judge in the case argued that the Supreme Court had “firmly establish[ed] that our Constitution permits the government to use race-based classifications to remediate past discrimination,” and that the present decision went squarely against that precedent. The Wall Street Journal, however, points out that legal remedies for discrimination “must address a specific episode of past discrimination, the past discrimination must have been intentional, and the government must have played a role in that discrimination,” none of which are true in the instance at hand. The Journal goes on to quote the Chief Justice of the Supreme Court, who said rather simply that the “way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
Vitolo is obviously not an isolated insident. The Wall Street Journal article is quick to adress the possible implications for Students for Fair Admissions v. Harvard, “which concerns the university’s use of race to discriminate against Asian-Americans in admissions,” a case which migh soon make its way to the nation’s highest court. And it’s worth remembering that, last November, Calfornia soundly rejected a proposition which got a decent amount of support from prominent Democrats, including current Vice President Kamala Harris, that would have re-allowed “racial discrimination and preferences in public hiring, contracting and education” according to USA Today. It seems likely that debates over the permisability of overtly race-based legal action will continue to be had in both appeals courts and the court of public opinion in the years to come.
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