The infrastructure law Congress enacted last year includes $37 billion 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, calls it unconstitutional discrimination, and he has gone to court to try to unwind the 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 has battled affirmative action programs in President Biden’s 2021 coronavirus relief package. In one case, a federal appeals court halted funding set aside for minority-owned restaurants. In another case, a federal judge upended a plan to forgive debts rung up by minority farmers.
Benefits for minorities via government contracts have been on the books for decades, but critics say the Biden administration and the Democratic-controlled Congress are increasing disparities.
“Racial equity includes racial discrimination against Whites and Asians,” said Daniel Lennington, deputy counsel at the Wisconsin Institute for Law & Liberty, which runs the Equity Under the Law Project.
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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 historically have experienced discrimination in America — namely women, Blacks, Hispanics and Asians.
Leveling the playing field?
The Equity Under the Law Project is one of a host of groups trying to unwind decades of preference programs.
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. The challengers say the policies advance Black and Hispanic applicants while hurting the chances of Asian students.
Affirmative action opponents hope the high court’s ruling, expected by next summer, will upend the racial preferences playing field.
Others say the programs are still necessary.
“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.”
Black farmers who were supposed to benefit from the coronavirus debt relief program said they faced that kind of uneven playing field. In 1999, a federal court ruled that the U.S. Department of Agriculture had systematically discriminated against Black farmers for decades 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 relief act.
White farmers sued, and a federal judge sided with them. The ruling said the government didn’t prove any discrimination at the Agriculture Department in the past decade, so there was no valid justification for such a racially motivated relief program.
In the climate and tax bill that Mr. Biden signed last month, the debt relief program was repealed and replaced with one aimed at “distressed” farmers. It doesn’t mention race.
John Boyd Jr., president of the National Black Farmers Association, said he was disappointed that 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, a pro-Trump legal group sued Amazon over a program to offer $10,000 in startup costs to “Black, Latinx and Native American entrepreneurs” for 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. She said she faced discrimination from the company because she wasn’t eligible for 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 pending in federal district court.
Ms. Bolduc said Amazon needs to either end the program or open it to all comers.
The 5th U.S. Circuit Court of Appeals 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. It argued that the Nasdaq proposal 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.
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.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.
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