Recent federal court rulings reject President Biden’s desire to discriminate in favor of women and minorities in using taxpayer money to aid businesses hit hard by COVID-19 shutdowns.

The rulings support plaintiffs upset at Biden’s Small Business Administration (SBA), saying it violates the Constitution because applications for restaurant relief from women and racial minorities would receive preferential treatment, being processed in the program’s first 21 days (from May 3 to May 24, 2021). Other applicants would be processed later.  

The courts note this could hurt applications further back in line because the SBA could run out of money when white males are considered for the $28.6 billion Restaurant Revitalization Fund (“RRF”) set up under the American Rescue Plan Act of 2021 (“ARPA”). They said Biden was violating the Constitution’s guarantee of equal protection. 

On May 18, Federal Judge Reed O’Connor in Texas issued a temporary restraining order against the SBA in ruling for plaintiff Philip Greer, who owns and operates Plaintiff Greer’s Ranch Café—a restaurant that lost nearly $100,000 in gross revenue during the COVID-19 pandemic.

On May 28, O’Connor also granted a preliminary injunction for another case brought by joint plaintiffs Jason and Janice Smith for their restaurant Blessed Cajuns that allegedly lost nearly $350,000 in gross revenue during the pandemic, and Eric Nyman, whose PSBH LLC restaurant reportedly lost $800,000 during the pandemic.

O’Connor wrote that SBA applications should be “processed and considered in accordance with a race-neutral, sex-neutral ‘first come, first served’ policy,” and not doing so meant the plaintiffs were “suffering a continuing and irreparable injury based on the direct, lingering effects of the race-based, sex-based discriminatory application process.”

In a separate case, the Sixth Circuit Court of Appeals also granted a preliminary injunction against Biden’s SBA in favor of white plaintiff Antonio Vitolo, half-owner of Jake’s Bar and Grill in Tennessee (the other half is owned by his Latina wife). The 2-1 decision by Judges Alan Norris and Amul Thapar set a bright line against discrimination, as The Wall Street Journal editorial board reports:

“The SBA justifies its bias as necessary to remedy past societal discrimination. But Judge Thapar notes that the Supreme Court has said such a remedy is only justified under narrow circumstances. It must address a specific episode of past discrimination, the past discrimination must have been intentional, and the government must have played a role in that discrimination. Judge Thapar writes that the SBA fails all three tests.

This legal analysis is an arrow to the heart of much of the Biden Administration’s racially divisive agenda. It will, at a minimum, force the Biden lawyers to explain their justification for distributing racial spoils with far more specificity. Even if they do, these and similar cases may end up at the Supreme Court.”

The Journal also notes that Judge Thapar, who is Indian-American, cites the spot-on conclusion from at 2007 case written by Supreme Court Chief Justice John Roberts in a case about race preferences for Seattle schools: the “way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”