The Biden administration has backed away from defending two race-based programs that were central to its “racial equity agenda,” The Washington Post reported Friday.
Federal courts have ruled racial preferences unconstitutional in cases involving the Minority Business Development Agency and the Small Business Administration's 8(a) program, which awarded loans and government contracts based on race. according to The Department of Justice (DOJ) did not appeal the ruling, instead limiting the scope of the two race-based programs, according to the Washington Post. (Related: Supreme Court bans racial bias in college admissions)
According to the Washington Post, federal contracts awarded to “small and disadvantaged businesses,” primarily minority-owned, increased from $59 billion to $76 billion in Biden's first three years in office.
Supporters 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)
According to the Washington Post, legal experts say the Justice Department's withdrawal stems from fears of losing the case in higher courts.
“It's very simple: They don't appeal because they would lose,” Dan Lennington, an attorney with the Wisconsin Institute for Law and Liberty, who represented the plaintiffs in the Texas Minority Business Development Agency lawsuit, told The Post. “If they lose in the higher courts, it's even worse because it would set important precedent and spur challenges to other programs. … Their litigation strategy appears to be containment. They want to prevent a total dismantling of Biden's racial equity policies before he leaves office.”
“Maybe they want to avoid a ruling that weakens or nullifies other programs that help minorities who have been historically discriminated against,” Harvard constitutional law professor Noah Feldman told the outlet. “Or maybe they're afraid that the appeals court will go further than the district court and find that there isn't enough evidence of past discrimination, which could impact other programs as well.”
The Supreme Court ruled against race-based admissions selection practices in June 2023 following a lawsuit involving Harvard University and the University of North Carolina, which argued that the programs violate the Equal Protection Clause of the 14th Amendment to the Constitution.
Conservative legal groups have filed more than 10 lawsuits since the Biden administration took office challenging racial preferences in federal programs, according to the Washington Post.
The White House did not immediately respond to a request for comment.
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