The Biden administration has backed down from defending two race-based programs that were central to its “racial equity agenda,” the Washington Post reported Friday.
Federal judges ruled that racial preference is unconstitutional in cases regarding the Minority Business Development Agency and the Small Business Administration’s 8(a) program, which provided loans and government contracts on the basis of race, according to the Post. The Department of Justice (DOJ) has not appealed the rulings, instead limiting the scope of the two race-based programs. (RELATED: Supreme Court Rules Against Racial Prejudice In College Admissions)
The volume of federal contracts for “small disadvantaged companies,” which are primarily minority-owned, grew from $59 billion to $76 billion in the first three years of Biden’s presidency, according to the Post.
Proponents of affirmative action hold signs during a protest at Harvard University in Cambridge, Massachusetts, on July 1, 2023. (Photo by JOSEPH PREZIOSO/AFP via Getty Images)
Legal experts say the DOJ’s retreat stems from fears of losing in a higher court, according to the Post.
“It’s pretty simple — they aren’t appealing because they will lose,” Dan Lennington, a lawyer at Wisconsin Institute for Law & Liberty, which represented the plaintiffs in the Minority Business Development Agency case in Texas, told the Post. “And losing at a higher court is worse because it would create important precedent and accelerate challenges to other programs. … Their litigation strategy appears to be containment — they want to prevent the wholesale dismantling of Biden’s racial equity agenda before he leaves office.”
They might well want to avoid a holding that goes far in undermining or even striking down other programs that serve historically discriminated-against minorities,” Noah Feldman, a constitutional law professor at Harvard University, told the outlet. “Or they could fear that an appeals court would go further than the district court and find there was insufficient evidence of prior discrimination here, with implications for other programs.”
The Supreme Court ruled in June 2023 against race-based admissions practices following lawsuits involving Harvard University and the University of North Carolina, arguing that the programs the Equal Protection Clause of the 14th Amendment.
Conservative legal groups have filed more than a dozen lawsuits challenging racial preferences in federal programs since the start of the Biden administration, according to the Post.
The White House did not immediately respond to a request for comment.
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