Melissa Harris-Perry: You're listening to the takeaway. I'm Melissa Harris-Perry, in for Tanzina Vega. Small businesses owned by people of color have been hit particularly hard by the pandemic-related economic crisis. Between March and April of 2020, 42% of black-owned businesses and 32% of Latino-owned businesses close their doors. That's compared to less than 20% of white-owned businesses. That's according to the National Bureau of Economic Research.

Now reporting last year from the associated press found that thousands of minority business owners had to wait months longer than their white counterparts for payment protection plan or PPP loans approved under the Trump administration's COVID relief packages. These disparities were one reason that restaurant owners of color were encouraged by a Biden administration program intended to prioritize disadvantaged groups, applying for federal grants to help their restaurants stay afloat.

Gregory León: My name is Gregory León and I'm the chef and sole proprietor of Amilinda, a small Spanish and Portuguese independently owned restaurant in downtown Milwaukee, Wisconsin. I'm of Latino descent. I'm also LGBTQ. This was great to help us in the past, when we've applied for other programs, usually, we haven't been approved because of the amount of people that are applying, big corporations, big restaurant groups are always seem to be getting these big fat checks.

The little guy I own this restaurant by myself, this is a small little restaurant was going to be able to help us get a leg up. It's like, okay, great. We can apply first and maybe we can get these funds and then we can continue doing the work that we're doing.

Melissa: Last weekend, Gregory and nearly 3000 other restaurant owners who had initially been approved for federal grants under the government's prioritization program found out their funds weren't going to go through after all.

Gregory: We received the letter saying that we hadn't been approved on the 28th of May. The original letter said that we would have gotten our funds deposit in our accounts, three to 10 business days. At day number eight, I was getting a little antsy. I called and they said, "Oh, there's been a glitch in the system. You'll receive at 10 to 14 days." This past Sunday, I received a letter saying that we would not receive the funds because of the lawsuit.

Melissa: The lawsuits that put these grants on hold are backed by conservative groups led by former Trump administration officials, including Stephen Miller and Mark Meadows. Filed on behalf of white male restaurant owners, they argue that prioritizing people of color and women for federal leaf is discriminatory towards white men and rulings in favor of white male plaintiffs. Meaning that the financial future of restaurants like our Amilinda is now in jeopardy.

Gregory: Basically what has happened is that everybody who was put on hold on 2,900 of us were just moved off to the side and everybody who applied after us and the non-grace period, they're going to start getting their funds until this program runs out of money. The only way I will receive the award that was granted to me is if Congress refills these accounts.

I wish I could tell you what the future holds for myself and Amilinda. My staff is amazing and we've had several meetings and we're just going to continue to chug along as long as we can just doing what we're doing right now. Will Amilinda be here by the end of the summer? It's hard to tell. I wish I could say yes, but I can't say that with certainty. It saddens me to say that.

Melissa: For more on why this reverse discrimination legal strategy has succeeded recently, I'm joined by Alexis Karteron, associate professor of law and director of the Constitutional Rights Clinic at Rutgers Law School. Alexis, it's great to have you here.

Alexis Karteron: Thanks for having me.

Melissa: What have courts traditionally allowed when it comes to government programs that are going to prioritize folks based on race or gender or some intersection of those?

Alexis: Well, it's been a project of the conservative legal movement for decades now to eradicate any preferences on the basis of race, whether in contracting government grant programs, education. Courts have been very hostile, I think it's fair to say, to these kinds of programs for a very long time making these rulings that have come out in the last couple of weeks, fairly unsurprisingly.

Melissa: Let's talk about some of those rulings. Clearly, we're talking here about this prioritization program, but we also talked earlier in the week about the black farmer's debt relief program. Have there been other there's?

Alexis: Those are the two that I have in mind. Those seem to be the two that are making the news lately.

Melissa: Let's talk a little bit about the courts. I know it can feel as though the Supreme court is the only thing that we talk about in national media, but who are these decision-makers who are looking at these federal programs and deciding that prioritizing certain identities is the problem.

Alexis: Well, I'm so glad you asked that because although, as you said, the Supreme court gets so much attention, it makes so much news. They actually decided a pretty small number of cases every year. Instead, these cases really mostly are decided by the lower federal courts, federal district courts, and federal courts of appeals with judges that most of us don't know the names of but who, again, are I think expressing real hostility to these kinds of programs that try to address historical ongoing societal discrimination against people of color.

Melissa: You and I are both in the academy. I feel like I remember this beginning to happen in the academy now 15 years ago. The notion that you could make a claim towards race-based preferences, but only if it was for the purpose of diversifying undergraduate students or graduate students, it couldn't be made on the basis of redressing past wrongs. Is that part of what's happening in terms of the legal reasoning here?

Alexis: Yes, absolutely. You're right. I think it's actually probably been closer to 20 years now, although that the Supreme court decided that diversity could, in fact, be a compelling interest that could be used to justify race-based affirmative action in higher education, but it was long before that, but the conservative legal movement targeted race-based programs outside of education. Decades ago around, in the early 1990s, there were a series of cases where the Supreme court confronted, programs that were designed to ensure that contracting bids from state local governments or state governments that may be a certain percentage of them went to businesses that were owned by people of color.

The Supreme court said that governments, local governments, state governments, they could not do that if they had the goal of confronting or remedying societal discrimination in general, that they had to be remedying, something that they themselves had done intentionally and that the redress that they were trying to create could only go to the people who had been clear victims of intentional governmental discrimination. In this area, the law has been pretty hostile to programs like this for a long time, even pre-dating, the Supreme court's treatment in higher education regarding diversity.

Melissa: Can you talk a little bit more about the court and the way that it's thought about the intent of discriminatory behavior versus the effects, the outcomes of discriminatory policy?

Alexis: Sure. Dating back to the 1970s, the Supreme court held that attempting to address race discrimination could only be done if that discrimination was intentional. It basically said you can't look at outcomes. You can't say, okay, there's a racial disparity here and I, as the government, want to address it. That doesn't constitute unconstitutional racist crimination unless there was an intention by the government to discriminate on the basis of race. Again, that dates back to a case called Washington v. Davis that was just like way back in 1976 and that animates everything we know about how to address race discrimination in a constitutional and then there's a constitutional question about it.

Melissa: How would one demonstrate intention? Do you need a smoking gun email with racist language, for example?

Alexis: That will be a good way to show it. I think there's a lot of concern that the courts have defined discrimination so narrowly now, and intentional discrimination so narrowly that smoking's on email is one of the few ways that you can show it. You can use disparities as evidence of intentional discrimination for sure, but there really needs to be something that goes beyond that. There are occasionally cases that you see where a plaintiff can successfully show that there's been intentional discrimination with something besides smoking gun email, but it's a real challenge.

Melissa: This might be an unfair question to ask a law professor, but is this evidence that the courts simply can't bring racial justice, that the narrow construction of it always being about that one individual case and these particular plaintiffs and the particular standing, does that mean we actually can't redress the big social structural, but often don't have the smoking gun email?

Alexis: I think it's a very good question to ask. It's really been striking in the last year that it feels like there's a really big disconnect between the conversation in the courts and the legal academy about how to define racial discrimination that is unconstitutional and the conversation at large that our society is having about what racial discrimination looks like. I think it's a very good question to ask, and the courts are continuing to stick to the very narrow conception that has been the prevailing definition since the 1970s and we should think really hard about whether the courts are the place where racial justice can be achieved.

Melissa: Is it in part, a question also of the ways in which the federal bench was so dramatically reshaped under the Trump administration, again, not just at the Supreme court, but throughout the federal judiciary?

Alexis: Well, I think looking at the lower courts, yes. President Trump worked hard and was successful at putting a lot of pretty conservative people on the courts. I think there are at least some of his nominees who wouldn't even say that Brown v. Board of Education was decided in the right way. In their confirmation hearings, they basically declined to answer the question.

That gives you a sense that the federal courts are not necessarily places that are going to be particularly welcoming to claims regarding racial discrimination. Again, this is where most of these cases will be decided because the Supreme court really hears a very small number of cases. When you look at the landscape of the federal judiciary, I think it's fair to say it is not exactly friendly territory for claims involving racial discrimination.

Melissa: Alexis Karteron is an associate professor of law and director of the Constitutional Rights Clinic at Rutgers Law School. Alexis, thank you so much for walking us through all of this.

Alexis: Thanks for having me.

[00:11:16] [END OF AUDIO]

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