Just before leaving town for the August recess, the United States Senate quietly — and unanimously — confirmed the head of the Minority Business Development Agency (MBDA). The agency’s vision is “economic prosperity for all American business enterprises.” The MBDA will build regional centers, run grant programs, offer training programs, and assist businesses in obtaining financing, among other things.
Make no mistake: This federal agency is not an equal opportunity provider. Congress limited the MBDA, part of the Department of Commerce, to assisting only “disadvantaged businesses,” which federal law presumes to be only businesses owned by African Americans, Hispanics, American Indians, Asians, or Pacific Islanders. All white-owned businesses are presumed to be “not disadvantaged.” MBDA’s website is crystal clear that the agency is “solely dedicated to the growth and global competitiveness of minority business enterprises.”
Why is this a problem? The Constitution broadly forbids race discrimination by the government. Although courts have sometimes allowed government officials to treat individuals differently based on race, these exceptions have been limited to permit no more discrimination than is necessary to alleviate some discrete episode of discrimination in a particular place and in which the government has somehow been involved. For example, in U.S. v. Paradise, the Supreme Court allowed a temporary racial quota to remedy Alabama’s “long term, open, and pervasive” intentional discrimination against black state troopers. The court allowed the program, in part, because it was “flexible, waivable, and temporary in application,” it had worked in the past, and it did not “burden innocent third parties.”
The facts in Paradise were egregious. Whether the court got the rule exactly right, the MBDA is not limited in this way. It prefers all blacks and certain other racial minorities. It burdens all whites. It rests on allegations of generalized “racism” and is not firmly tied to demonstrated and particularized discrimination. It seeks to eliminate group disparities that are presumed to stem entirely from a general atmosphere of discrimination.
Equal Opportunity not ‘Equity’
While the Supreme Court is currently considering whether public universities can make limited use of race as a factor to promote “diversity” in admissions, it has long made clear that the government may not draw racial classifications merely to eliminate racial disparities or even to address general “societal” or even “systemic” discrimination. As in Paradise, carefully limited racial preferences might be justified to redress a government’s demonstrated refusal to hire black officers, but quotas cannot be adopted to ensure that the force “looks like” the community. The American left may seek to replace equal opportunity for individuals of all races with an “equity” mandating group equality, but our Constitution won’t permit it.
As former Justice Sandra Day O’Connor wrote in a 1989 case striking down racial quotas, allowing race discrimination to rebalance society “effectively assures that race will always be relevant in American life.”
There is no logical stopping point to racial tinkering aimed at precisely equal outcomes for all racial groups. The resulting regime of racial entitlement would be inconsistent with the moral force behind the civil rights movement — that all Americans ought to be judged by the content of their character and not the color of their skin. As Supreme Court Justice Antonin Scalia put it, from a constitutional perspective, there can be “no such thing as a creditor or debtor race” because that concept “is alien to the Constitution’s focus on the individual.” And as Chief Justice John Roberts famously wrote, “[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
This route may not be simple or quick. But it’s the only one.
Other Racist Government Programs
Unfortunately, the MBDA is not an outlier. The Biden administration has frequently set up explicit race discrimination in prior programs. In 2021, the administration launched a farmer loan forgiveness program to help “disadvantaged” farmers, a Restaurant Revitalization Fund that prioritized “disadvantaged” restaurant owners, and a Homeowner Assistance Fund with flexible standards only for “disadvantaged” homeowners. The administration even created a $37 billion infrastructure fund for “disadvantaged” federal contractors. In each instance, “disadvantaged” was just a euphemism for “non-white.” Litigators stepped in. The Equality Under the Law Project, run by the Wisconsin Institute for Law and Liberty, challenged each program, obtaining two favorable court orders, one substantial programmatic change, and one legislative repeal by Congress. Others enjoyed similar success.
It is unlikely that Congress will fix the MBDA. Not a single senator objected to the appointment of the head of that racially discriminatory agency. Instead, MBDA’s fate — and the fate of the dozens of other new race-based federal programs — will depend on whether small business owners and average citizens are willing to stand up for equality under the law and join in the fight for a colorblind society.
