The infrastructure law Congress enacted last year includes $37 billion set aside for small “disadvantaged” businesses — a way of getting more money into the hands of companies owned by women and racial or ethnic minorities.
Christian Bruckner, a disabled Romanian immigrant, says that’s unconstitutional discrimination, and he’s gone to court to try to unwind the new preference program.
It’s just one of the challenges to President Biden’s “equity” agenda, which is testing the boundaries of affirmative action.
Mr. Bruckner’s case is being fought by the Equity Under the Law Project, which already has battled the administration over affirmative action programs in President Biden’s 2021 coronavirus stimulus package. In one case, a federal appeals court halted a stimulus set aside for minority-owned restaurants, while another case saw a federal judge upend a plan to forgive debts rung up by minority farmers.
Benefits for minorities via government contracts have been around for decades. But Dan Lennington, deputy counsel at the Wisconsin Institute for Law and Liberty, which runs the Equity Under the Law Project, said the Biden administration and the Democrat-controlled Congress are increasingly creating disparities in their equity efforts.
“Racial equity includes racial discrimination against Whites and Asians,” he said.
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A spokesperson for the Justice Department did not respond to a request for comment.
Mr. Bruckner owns the contracting firm Project Management Corp. in Tampa, Florida. His lawsuit says the administration’s set-aside of funds in the Infrastructure Investment and Jobs Act is unlawful because it must be used for groups that have experienced discrimination in American history — namely, women and Black, Hispanic and Asian Americans.
Leveling the playing field?
Equity Under the Law Project is one of a host of groups looking to unwind decades of preference programs.
For example, the Supreme Court will hear a high-profile test on Oct. 31 in challenges to the student admission programs at Harvard University and the University of North Carolina at Chapel Hill, which advance Black and Hispanic applicants while, according to the challengers, hurting Asian students’ chances to get in.
Affirmative action opponents hope the high court’s ruling, expected by next summer, will upend the racial preferences playing field.
But other analysts say there’s still a need for the programs.
“Without affirmative action or other programs that promote greater diversity, we risk losing the voices of populations that have been marginalized for generations,” said Meera Deo, a professor at Southwestern Law School. “We can think of these efforts as a way to level the playing field; when particular groups start a race way behind or are weighed down while running, they really can’t compete with others who start off way ahead and unencumbered.”
The Black farmers who were supposed to benefit from the coronavirus stimulus law’s debt relief program say they faced just that kind of uneven playing field. In 1999, a federal court ruled that the U.S. Department of Agriculture for decades had systematically discriminated against Black farmers in awarding government aid. Under a settlement, farmers who faced discrimination won $50,000 payments.
The Black farmers said that wasn’t enough to correct decades of discrimination. They sought debt relief, which Democrats delivered in Mr. Biden’s March 2021 coronavirus stimulus.
White farmers sued, and a federal judge sided with them, ruling that because the government didn’t prove any discrimination at the Agriculture Department in the last decade, there wasn’t a valid justification for such a racially motivated relief program.
In the new climate and tax law that Mr. Biden signed last month, the debt relief program was repealed and replaced with one aimed at “distressed” farmers and doesn’t mention race.
John Boyd Jr., president of the National Black Farmers Association, said he is disappointed the Biden administration abandoned the fight.
“We have days, not weeks and months, to save many Black, Native American and other farmers of color from ruin. Black farmers are facing … extreme heat and drought [and] the sell-off of livestock, equipment [and] land to make loan payments. We cannot and will not trust a president who doesn’t honor his commitments,” Mr. Boyd said.
Business and diversity
In the private sector, Amazon was sued by a pro-Trump legal group over its program to offer $10,000 in startup costs to “Black, Latinx and Native American entrepreneurs” who want to start delivery partnerships with the internet sales giant.
America First Legal filed the case in July on behalf of Crystal Bolduc, a White woman in Texas who said she was interested in starting up an Amazon driver partnership but felt the company was discriminating against her because she couldn’t get the $10,000 payment. She said that was a violation of the Civil Rights Act’s Section 1981, which prohibits discrimination based on race. The case is still pending in federal district court.
Ms. Bolduc said Amazon needs to either end the program or open it to all comers.
And the U.S. Court of Appeals for the 5th Circuit recently heard a challenge to Nasdaq’s diversity rule. The “Board Diversity Proposal” forces large Nasdaq-listed corporations to maintain and disclose a certain number of minority members or else be delisted.
The rule, proposed in February 2021, requires Nasdaq corporations — with exceptions for small or foreign firms — to have, or explain why they don’t have at least one director who identifies as a woman and one director who identifies as a minority race or part of the LGBTQ community.
The National Center for Public Policy Research, a conservative think tank, challenged the rule, arguing it runs afoul of the Constitution because it promotes discrimination and forces corporations to speak in violation of the First Amendment by disclosing details of board members.
But Tiffany Pham, CEO of Mogul, a diversity recruitment company, said diversity programs balance unfair disparities and are necessary for businesses.
“While there are equal opportunity laws that ensure that an employer is not rejecting a candidate due to a protected status, what we’re finding is that qualified diverse candidates aren’t even in the candidate pool. So the efficacy is in ensuring that there is an adequate balance of diverse candidates in the first place,” Ms. Pham told The Washington Times. “The bottom line is that diversity makes sense, and it’s good for profitability.”
• Stephen Dinan contributed to this report.