OPINION: This article contains commentary which reflects the author's opinion
A federal appeals court this week blocked the Biden administration from prioritizing grants in its restaurant relief program on the basis of race and gender.
In a 2-1 ruling, the 6th Circuit Court granted an injunction to a restaurant that sued the Small Business Administration to challenge its use of race and sex preferences when distributing its $28.6 billion Restaurant Revitalization Funds.
The court held that prioritizing women, and socially and economically disadvantaged business owners for the first 21 days of the application period violated the equal protection clause.
Wisconsin Institute for Law & Liberty brought the case for Antonio Vitolo, owner of Jake’s Bar and Grill in Harriman, Tennessee.
Vitolo had immediately applied for aid on May 3 but, according to the lawsuit, did not qualify yet because he is a white male, Fox 17 reported.
Small Business Association Administrator Isabella Casillas Guzman was named as the defendant for the case that started in the U.S. District Court in East Tennessee.
“Given the limited pot of funds, this puts white male applicants at significant risk that, by the time their applications are processed, the money will be gone,” the lawsuit argued.
Vitolo’s application was “pushed to the back of the queue behind certain minority applicants and women,” the lawsuit argued.
“Vitolo would be “economically disadvantaged” were it not for the racial classification in that definition,” it said.
“Under the guise of pandemic relief, the American Rescue Plan Act enables the federal government to engage in an illegal and unconstitutional race and sex discrimination. This is ugly, pernicious, and toxic. We will fight it wherever it shows up,” WILL President and General Counsel Rick Esenberg said.
The case made its way to the Sixth Circuit Court of appeals where, by a 2 -1 ruling, it was decided that the Biden Administration’s prioritization of minority and women-owned businesses was “unconstitutional.”
Judge Amul Thapar, who penned the majority decision, was joined by Judge Alan Norris in a ruling that read, in part, “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.”
“Thus, we enjoin the government from using these unconstitutional criteria when processing Antonio Vitolo’s application,” the ruling said.
“Since the government failed to justify its discriminatory policy, the plaintiffs will win on the merits of their constitutional claim,” it said.
The decision said, “As today’s case shows once again, the “way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
“The Small Business Administration has injected explicit racial and ethnic preferences into the priority process,” the decision said. “Under a regulation that predates the pandemic, the agency presumes certain applicants are socially disadvantaged based solely on their race or ethnicity.
“Groups that presumptively qualify as socially disadvantaged—and thus get to jump to the front of the line for priority consideration—include ‘Black Americans,’ ‘Hispanic Americans,’ ‘Asian Pacific Americans,’ ‘Native Americans,’ and ‘Subcontinent Asian Americans,’ the ruling said.
“If you are in one of these groups, the Small Business Administration assumes you qualify as socially disadvantaged. Indeed, the only way not to qualify is if someone comes forward ‘with credible evidence to the contrary,’” it said.
“The government shall fund the plaintiffs’ grant application, if approved, before all later-filed applications, without regard to processing time or the applicants’ race or sex. The government, however, may continue to give veteran-owned restaurants priority in accordance with the law. This preliminary injunction shall remain in place until this case is resolved on the merits and all appeals are exhausted,” the court ruled.
The government is likely to appeal the ruling but it is not known if the government has significant merit to get the case onto the Supreme Court document. If it does not then the decision will stand.
As it is, this is a stinging blow to Biden’s race-based policies, and it may not be the last.