On May 27, the Sixth Circuit Court of Appeals ruled that provisions for Covid-related financial assistance to minority-owned small-restaurant owners violated the 14th Amendment, which states that “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
The lawsuit was brought by a couple who jointly owned a restaurant, reports Glenn Greenwald. The husband is considered “white” for the purposes of the law, and the wife is “Hispanic.” Had she owned a 51% stake in the business, they’d be eligible to apply for a Small Business Administration loan on May 1, but instead had to wait for 22 days for businesses primarily owned by various racial and ethnic groups, veterans, or women, got first dibs.
Judge Amul Thapar, who wrote the decision, is the son of Indian immigrants and the first judge of South Asian descent to be appointed to the U.S. federal bench. Pointing to the inconsistencies in the law, Thapar wrote: “Individuals who trace their ancestry to Pakistan and India qualify for special treatment. But those from Afghanistan, Iran and Iraq do not. Those from China, Japan, and Hong Kong all qualify. But those from Tunisia, Libya, and Morocco do not.”
Recognizing that such preferences are constitutionally permissible only if they are “narrowly tailored” and the intended aims cannot be achieved by “race-neutral alternatives.” Among such alternatives, the judge considered that the government could “grant priority consideration to all business owners who were unable to obtain needed capital or credit during the pandemic” (as evidenced by rejected loan applications, for example). Another idea: the state “could simply grant priority consideration to all small business owners who have not yet received coronavirus relief funds.”
