By Rick Esenberg and Dan Lennington
This column was first published at National Review
Cracks are developing in President Biden’s racial-equity agenda, thanks to business owners, farmers, homeowners, and other ordinary Americans who stood up to demand equality under the law.
Within hours of his inauguration, President Biden declared a “whole-of-government equity agenda” to remove the “unbearable human costs of systemic racism.” While the agenda sounded benign — “Equal opportunity is the bedrock of American democracy, and our diversity is one of our country’s greatest strengths” — much of it constituted a “shock and awe” program of explicit racial preferences.
It has not been unusual for government, in handing out benefits and providing services, to use race as an aspirational “thumb on the scale” or to establish (or contrive) a remedial justification for its use. But government has been more reluctant to nakedly hand out things based on the color of the recipient’s skin.
Following the Biden initiative, though, there seemed to be a marked departure from preferences that required some demonstration of a remedial purpose rooted in the particular circumstances of the beneficiary. “Equity,” it turns out, was simply code for reverse discrimination.
President Biden’s two signature legislative accomplishments — the American Rescue Plan Act (ARPA) and the Bipartisan Infrastructure Bill — wrote this new form of “equity” into our laws. ARPA, for example, contains billions in race-based preferences for nonwhite restaurant owners, nonwhite farmers, nonwhite small businesses, and nonwhite homeowners. And the Bipartisan Infrastructure Bill included billions more in set-asides for nonwhite construction companies, labeled by the law as “disadvantaged business enterprises.” What’s more, billions in infrastructure funds are set to be spent based on race, with fair-sounding names such as “Digital Equity Grants,” “Healthy Streets Program,” and “Reconnecting Communities Program.”
Make no mistake: These programs distribute tax dollars based on race, even though our Supreme Court has continued to make clear that all racial preferences are highly disfavored and subject to the strictest of scrutiny.
While the ink was still wet on Mr. Biden’s signature, Americans started to take notice of ARPA’s race-based provisions. Litigation was the response. Adam Faust, a disabled dairy farmer from northeastern Wisconsin, learned that ARPA’s Farmer Loan Forgiveness Program helped all farmers except white farmers. And Tony Vitolo, a restaurant owner from Tennessee, discovered that white restaurant owners would be boxed out of a Covid-19 relief fund based on a racial “priority period.”
Both Adam and Tony, along with other concerned farmers and restaurateurs around the country, with the help of groups like ours — the Wisconsin Institute for Law & Liberty (WILL) — successfully sued the Biden administration, putting a halt to billions in equity spending. A “legal juggernaut” soon materialized, leading to billions in Biden’s equity agenda being tied up in more than a dozen federal courts.
These initial successes had significant ripple effects. For example, in July 2021 the Biden administration announced an environmental project called “Justice 40,” which aimed at delivering “at least 40 percent of the overall benefits from Federal investments in climate and clean energy to disadvantaged communities.” Because certain racial groups are presumed to be “disadvantaged,” this program, which would impact billions in federal spending, once again proposed racial preferment.
But as the New York Times recently reported, the Biden administration is “worried that using race to identify and help disadvantaged communities could trigger legal challenges that would stymie their efforts.” After specifically noting victories against the race-based farmer-loan-forgiveness program, the Times reports that the administration will now “step away from race.”
In another ARPA program, the Homeowner Assistance Fund, Congress ordered the Department of the Treasury to set up a relief fund with a preference for nonwhite homeowners. Originally, the Biden administration adopted an explicit racial priority definition identical to the language in the Restaurant Revitalization Fund. But after that fund’s priority was struck down, Treasury quietly revised its regulations for the homeowner program. States, which were set to implement this $10 billion homeowner-assistance fund, followed suit. Wisconsin, for example, removed its racial priorities after receiving a warning letter from WILL.
Even the Democrats in Congress got cold feet on racial preferences in the president’s agenda. In the doomed “Build Back Better Plan,” House Democrats included a proposal to repeal the race-based farmer-loan-forgiveness plan and replace it with a race-neutral program.
The administration’s backpedaling does not mean the threat is over. The U.S. Department of Agriculture continues to implement its “Equity Commission” and its $1 billion budget to reform “land access.” The Transportation Department will begin to implement its 10 percent quota for “disadvantaged” (read: minority-owned) businesses from the Bipartisan Infrastructure Bill. And Treasury will continue to implement its race-based mandates from ARPA and execute its own “coordinated strategy to advance racial equity.”
Some of the proposed “resets” — making benefits available to members of groups subject to historic discrimination — simply restate the constitutional sin. While individuals who have themselves suffered discrimination may seek a remedy, our Constitution does not recognize blood guilt or favor. Race or ethnicity can almost never be the basis for government preferences.
While bird-dogging the administration will remain difficult, especially considering its strategic changes to avoid litigation, it is worth doing. It required both a civil war and a civil-rights movement to finally establish that each of us must be treated as an individual and not a racial archetype. The idea that this bedrock principle can be suspended for “just a while” to “even things out” is fantastical. Defending that principle today is the key to protecting our rights tomorrow.
Rick Esenberg is the president and general counsel and Dan Lennington is the deputy counsel at the Wisconsin Institute for Law & Liberty.
Read more at National Review.