The Biden administration has been losing in court on its racially biased policies, and last month something remarkable happened. It gave up.
Without explanation, the Justice Department declined to appeal a federal court injunction against a discriminatory loan-forgiveness program for farmers. Democrats in their March spending bill established a $3.8 billion program to forgive loans for "socially disadvantaged" farmers.
The Department of Agriculture interpreted this to include individuals "who are one or more of the following: Black/African American, American Indian, Alaskan native, Hispanic/Latino, Asian, or Pacific Islander." White farmers need not apply.
More than a dozen lawsuits have been filed challenging the USDA's racial preferences, and three so far have resulted in preliminary injunctions by district courts in Florida, Wisconsin and Texas. Justice failed to appeal the Florida injunction before its 60-day deadline last week and hasn't contested the others. Why? Perhaps it thinks it will lose on appeal and doesn't want to risk taking these cases all the way to the Supreme Court.
The farmers program is a blatant violation of the Constitution's equal protection clause. In Parents Involved in Community Schools v. Seattle School District (2007), the Supreme Court held "(W)hen the government distributes burdens or benefits on the basis of individual racial classifications, that action is reviewed under strict scrutiny."
The USDA program also runs afoul of the court's Richmond v. Croson (1989) precedent, which let governments adopt racial set-asides aimed at remedying specific episodes of past discrimination that the government had a hand in. But the Justice Department doesn't identify a specific incident of discrimination against minority farmers perpetuated by USDA.
Some governments have taken Croson as a license to use racial preferences on the sly. By declining to appeal the Florida injunction, the Justice Department may be hoping to deny the high court and its new majority an opportunity to issue a more forceful ruling against racial preferences.
Such strategic maneuvering isn't unprecedented. Tom Perez, as head of Justice's Civil Rights Division during Barack Obama's first term, pressured the city of St. Paul to withdraw a case at the high court that concerned the legality of statistical disparate-impact analysis in housing. He feared an adverse ruling would undermine the government's ability to bring cases against bank lending decisions.
The Justice Department may defend other racial-preference policies, but the right response is for the administration to stop discriminating by race.