Government officials are handing out tax dollars based on race and gender, in response to the COVID-19 pandemic.
One example is in Arlington, Va., where I live. The Arlington County government announced that it will hand out grants to small businesses based on “considerations” such as whether the business is “women and/or minority-owned.” That “consideration” of race and sex is unconstitutional.
To legally hand out tax dollars based on race to minorities, Arlington would have to show that it intentionally and systematically discriminated against those specific minority groups in the recent past, and needs to remedy that discrimination by giving them money today. The Supreme Court has said that race-based programs are allowed only to remedy the government’s own discrimination, not societal discrimination. (See Richmond v. J.A. Croson Co., 488 U.S. 469, 497 (1995)).
Arlington’s government can’t make that showing. Arlington is hardly a racist, sexist place that discriminates against minorities and women. Indeed, in some areas, it is disproportionately run by women and minorities. The sheriff and commonwealth’s attorney are female and have been for years. The chair of the county board is a woman. For years, the county board has had minority representation.
Yet, Arlington will prefer women and minorities in making grants to small businesses trying to stay afloat. On April 16, it announced:
"Arlington County has created the Arlington Small Business Emergency GRANT (Giving Resiliency Assets Near Term) Program, to provide immediate financial assistance to Arlington’s small businesses impacted by the COVID-19 pandemic….The GRANT Program would provide grants of up to $10,000 to businesses and non-profits with less than 50 employees. Businesses may use the grants for employee salary and benefits as well as for other business capital and operating expenses directly related to the immediate impacts of COVID-19. Funding for the program is being reallocated from existing grant funds in the FY2020 budget….Applications will be evaluated through a competitive process involving a weighted scoring system, looking at considerations like the number of jobs retained or supported with funds, length of time the business has operated in Arlington, whether it is women and/or minority-owned, demonstrated need, and how the funds will be used."
This preference for women and minorities is unjustified.
It is true that Arlington, like the south in general, once was segregated, and it had segregated schools into the 1960s. But that discrimination against black people is too far in the past to justify giving black people a racial preference today. And it certainly does not justify giving all “minorities” a preference in grant applications today.
Discrimination against black people is no justification for aiming benefits at other minority groups. (See Richmond v. J.A. Croson Co., 488 U.S. 469, 505 (1989)).
Courts have struck down racial set-asides because they included minority groups such as Asians that lacked black people’s history of being discriminated against by the government using the racial preference. (See L. Feriozzi Concrete Co. v. Casino Reinvestment Dev. Auth., 776 A.2d 254 (N.J. App. 2001)).
Segregation in Arlington ended decades ago. Even when when the government is remedying the present effects of its own past discrimination, rather than societal discrimination, discrimination that happened more than twenty years ago is too far in the past to justify giving minorities special treatment today. Courts have so ruled. (See, e.g., Brunet v. City of Columbus, 1 F.3d 390 (6th Cir. 1993) (Court ruled that gender discrimination that occurred 17 years earlier did not justify affirmative action); Hammon v. Barry, 813 F.2d 412 (D.C. Cir. 1987) (court ruled that race discrimination 14 years earlier did not justify affirmative action program)).
Colleges can consider race in admissions to promote intellectual “diversity,” if race is just one of many factors. The Supreme Court says that is because of colleges’ “academic freedom.”
But Arlington’s use of race in grants is not in an academic context, nor does it promote intellectual “diversity.” When Arlington County tried to make decisions based on “racial or ethnic group” to promote diversity, courts struck that effort down, saying Arlington couldn’t use race in assigning students to schools. (See Tuttle v. Arlington County School Board, 195 F.3d 698 (4th Cir. 1999)).
Courts have generally refused to allow the government to make race-based decisions to promote “diversity” outside the context of higher education. For example, the government cannot require that regulated entities use racial or gender preferences in employment to promote “diversity.” (See Lutheran Church–Missouri Synod v. FCC, 141 F.3d 344 (4th Cir. 1998)).
Most judges say that race-based programs and affirmative action are permitted only as a way of remedying a government’s intentional discrimination, not racial disparities amounting only to “disparate impact.” (See, e.g., Michigan Road Builders v. Milliken, 834 F.2d 583, 593 (6th Cir. 1987), aff’d, 489 U.S. 1061 (1989); Builders Association v. County of Cook, 256 F.3d 642, 644 (7th Cir. 2001); People Who Care v. Rockford Board of Education, 111 F.3d 528, 534 (7th Cir. 1997)).
It is less clear whether that’s also true for gender-based affirmative action. Some courts say a history of intentional governmental discrimination against women must be shown before a local government can award benefits based on sex. (See, e.g., Brunet v. City of Columbus, 1 F.3d 390, 406 (6th Cir. 1993); Builders Association v. County of Cook, 256 F.3d 642, 644 (7th Cir. 2001)).
There are plenty of minority-owned and women-owned businesses in my neighborhood in Arlington, and there is no sign that they are hampered by discrimination, much less discrimination by the County.
But even if blacks or women are “underrepresented” in various kinds of small businesses, that is not proof of discrimination against them. Racial or gender imbalance is not the same thing as discrimination. (See Police Association of New Orleans v. City of New Orleans, 100 F.3d 1159, 1169 (5th Cir. 1996) (City could not promote blacks based on race “to give a better reflection of the racial composition of the city,” or “remedy racial imbalances in the police department”)).
A federal appeals court ruling affirmed by the Supreme Court said that the government can only use gender preference to remedy its own discrimination against women — not discrimination against women in the broader society. (Michigan Road Builders v. Milliken, 834 F.2d 583, 595 (6th Cir. 1987), aff’d, 489 U.S. 1061 (1989)).
Arlington does have more minorities in certain neighborhoods, and less in other, wealthier neighborhoods. But racial imbalance in housing patterns or school enrollment does not legally constitute segregation or discrimination against minorities. (See Freeman v. Pitts, 503 U.S. 467, 494 (1992)).
Also, widespread discrimination, not just a few individual instances of discrimination, has to be shown to justify using race, according to judges. So even if there were isolated instances of Arlington County discriminating against black people or black employees, that wouldn’t justify discriminating in favor of black people as a class. (See, e.g., Middleton v. City of Flint, 92 F.3d 396, 405 (6th Cir. 1996)).
Businesses denied a grant on the race or sex of their owners have standing to sue over Arlington’s use of race and gender. That’s true even if the county considers race or sex as just one of many factors, and eliminating the use of race or sex wouldn’t guarantee that a particular business would get a grant, due to scarcity of funds and many businesses applying for just a few grants. (See Northeast Florida Chapter v. City of Jacksonville, 508 U.S. 656 (1993)).
Taxpayers may also have standing to sue over this unconstitutional racial preference, if it involves any direct monetary costs to the County. There is no such thing as “taxpayer standing” to sue the national government, outside the context of the First Amendment’s establishment clause. But it is a different story when a taxpayer sues a local government. Then the taxpayer has standing to sue if a challenged policy results in a direct monetary cost. (See D.C. Common Cause v. District of Columbia, 858 F.2d 1, 5 (D.C. Cir. 1988)).
Hans Bader practices law in Washington, D.C. After studying economics and history at the University of Virginia and law at Harvard, he practiced civil-rights, international-trade, and constitutional law. He also once worked in the Education Department.