An appeals court has ruled that the Biden administration can’t use race and sex as factors when distributing coronavirus pandemic funds.
In a 2-1 ruling, a three-judge panel of the U.S. Court of Appeals for the 6th Circuit said last week the Small Business Association was violating the Equal Protection Clause of the U.S. Constitution by giving priority to minority and female-owned restaurants seeking coronavirus relief funds.
“Government policies that classify people by race are presumptively invalid,” Judge Amul Thapar, a Trump appointee, wrote for the court. “Like racial classifications, sex-based discrimination is presumptively invalid.”
The case was brought by Antonio Vitolo, an owner of Jake’s Bar and Grill in Harriman, Tennessee. He is White, and his wife is Hispanic. They share the ownership of the restaurant 50-50.
They challenged the Biden administration giving money to restaurants owned by at least 51% minorities or women during the first 21 days of distributing roughly $29 billion as part of the American Rescue Plan Act of 2021.
The federal government reasoned the policy was valid because minority and female-owned businesses should be prioritized due to past discrimination.
The court documents pointed to the congressional testimony of one expert that said 32% of Hispanic and 41% of Black businesses went under during the pandemic, compared to only 22% of White businesses.
After the 21-day period, other restaurants would be able to receive funds if they were still available, according to the Biden administration.
But the 6th Circuit ruled there was no evidence to support the government’s preference and said the policy was inconsistent, giving priority for “Pakistanis but not Afghans; Japanese but not Iraqis; Hispanics but not Middle Easterners.”
“When the government promulgates race-based policies, it must operate with a scalpel. And its cuts must be informed by data that suggest intentional discrimination. The broad statistical disparities cited by the government are not nearly enough,” Judge Thapar wrote. “The policy’s use of race violates equal protection.”
The court enjoined the administration from continuing to prioritize race or gender.
The Justice Department declined to comment about the ruling or if it will appeal to the Supreme Court.
Judge Thapar was joined by Judge Alan Eugene Norris, a Reagan appointee, in the opinion. Judge Bernice B. Donald, an Obama appointee, disagreed with the majority.
In her dissent, Judge Donald said the Supreme Court has established that the Constitution allows the government to use “race-based classifications to remediate past discrimination.”
“The majority’s reasoning suggests we live in a world in which centuries of intentional discrimination and oppression of racial minorities have been eradicated,” she wrote.