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Less than two weeks after a federal judge found that race and sex preferences in federal COVID-19 relief were likely unconstitutional , a federal appeals court reached the same conclusion.
The 6th U.S. Circuit Court of Appeals issued a preliminary injunction Thursday against the preferences in the Restaurant Revitalization Fund, which is administered by the Small Business Administration (SBA).
“This case is about whether the government can allocate limited coronavirus relief funds based on the race and sex of the applicants. We hold that it cannot,” reads the majority opinion by Judge Amul Thapar, once considered a short-lister for President Trump’s Supreme Court nominations.
If the government approves Antonio Vitolo’s grant application for Jake’s Bar and Grill, the restaurant he co-owns with his wife, it must provide funds “before all later-filed applications, without regard to processing time or the applicants’ race or sex,” the ruling states. It applies to Kentucky, Michigan, Ohio and Tennessee.
The Supreme Court struck down similar racial preferences in contracting and college admissions going back 25 years, and this case is quite similar, Thapar wrote. The government can still give preference to veteran-owned restaurants.
The law provides an initial three-week period during which the SBA will only “process and fund priority group applications” — those small businesses “owned by women, veterans, or socially and economically disadvantaged individuals,” according to the agency .
That last category includes black, Hispanic, Native American, Asian Pacific and “Subcontinent Asian” Americans, because they have been subject to “racial or ethnic prejudice or cultural bias because of their identity as a member of a group without regard to their individual qualities.”
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Judge Bernice Donald issued a dissent that accused her peers of undermining the Supreme Court’s pioneering 1978 Bakke ruling on college admissions, which upheld “race-based classifications to remediate past discrimination.”
She dismissed the possibility that the three-week advantage may result in supposedly privileged applicants not getting any funding before the program runs out of money. The priority period is a “short-term, narrowly tailored, carefully calibrated measure designed to assist businesses most devastated by the pandemic,” Donald wrote. High evidentiary burden for whites, “some Asians and most Middle Easterners” […]
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