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Facebook Twitter LinkedIn Permalink Opinion | Commentary | Cross Country Oregon’s Segregated Covid Relief Fund Is Blatantly Unconstitutional
James Huffman
12-4-20
Maria Garcia applied for aid and was denied simply because she doesn’t ‘identify as Black.’
Portland, Ore.
The state of Oregon, hoping to strike a blow against both the pandemic and “systemic racism,” has established a Covid relief fund exclusively for blacks and black-owned businesses. The Oregon Cares Fund website accurately describes the program as “unprecedented.” It is also surely unconstitutional.
In July the Oregon Legislature Emergency Board allotted $200 million to assist small businesses suffering losses because of the pandemic and government-ordered shutdowns. Of the total, $62 million was set aside for the Oregon Cares Fund, whose website describes it as “a Fund for Black people, Black-owned businesses, and Black community based organizations.” Black families are eligible for up to $3,000 and black-owned businesses for up to $100,000.
Maria Garcia, owner of the Revolucion Coffee House in Portland, applied for support. She was denied because her business “does not meet the criteria because 0% of its owners identify as Black.” She has sued in federal court, alleging that the denial violates her rights under the 14th Amendment’s Equal Protection Clause. Last month a federal court declined a petition in another lawsuit, by the timber company Great Northern Resources, to enjoin further distributions from the Cares Fund. Both cases await a ruling on the constitutional merits.
The state couldn’t have been surprised at the challenges. Oregon’s Legislative Counsel advised the Emergency Board that, absent evidentiary findings of past discrimination by the state in the relevant industries, “the program would almost certainly be unconstitutional under the Fourteenth Amendment.” But in a brief submitted to the Legislature, the Portland law firm Schwabe, Williamson & Wyatt gave the board cover with this now familiar refrain: “Centuries of systemic and institutional discrimination—perpetuated and exacerbated by current systems—have caused economic disparities.”
After objecting that the Great Northern lawsuit is funded by an “out-of-state activist,” as if that had any relevance to its merits, Gov. Kate Brown and Attorney General Ellen Rosenblum offered the same defense as Schwabe, Williamson & Wyatt in a joint statement attributing the harms suffered by black businesses “to long–standing systemic inequities.” The Emergency Board put it this way: “The Black community across Oregon is in the midst of two pandemics. The first is this country’s 400 years of racial violence and strategic divestment from the Black community, deepened here in Oregon through intentional policy and practice.”
To justify a law that classifies on the basis of race, Oregon must demonstrate that the law is narrowly tailored to achieve a compelling state interest. Eliminating state-sponsored discrimination against blacks is a compelling state interest, but the Cares Fund isn’t narrowly tailored. It is available not on the basis of discrimination against applicants but on the presumption that all blacks and black businesses have been discriminated against by the state. More egregiously, it excludes similarly situated individuals like Ms. Garcia because of their race.
The Supreme Court has upheld programs that take race into account to address past discrimination in government employment and contracting and promote “the educational benefits that flow from a diverse student body” in college admissions. But the court has been clear that racial quotas are forbidden. The Oregon Cares Act establishes a quota—$62 million out of $200 million of government grants available only to blacks.
It’s one thing for public officials to acknowledge the wrongs of the past. But if the systemic-racism refrain of the summer’s protests, repeated in the state’s defense of the Oregon Cares Fund, becomes the legal test justifying blatantly discriminatory legislation, the promise of equal protection would become meaningless. Judges would have no need to hear any evidence of actual discrimination.
Ms. Garcia is Mexican-American. The Portland-based Latino Network asserted that “the actions of Maria Garcia are anti-Black.” But there’s no reason to doubt her business has been harmed as badly by the pandemic as have black businesses that qualify for Cares Fund relief. Her only shortcoming is that she isn’t black. In the language of equal protection law, but for her race she is similarly situated to a black-owned restaurant down the street. If her exclusion doesn’t constitute a violation of equal protection, I’m not sure what does.
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