An initiative can be both well-intended and also flagrantly in violation of the law. Such is the case of Alexandria’s paused program to give grants to minority-owned businesses after a lawsuit brought by a non-minority business resulted in a consent judgment to halt the program.
Seeking ways to boost minority owned businesses is admirable. However, this can’t be done in violation of the Fourteenth Amendment of the U.S. Constitution, which is the bulwark against discrimination with its “equal protection” clause. Section 1 of the Fourteenth Amendment reads:
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Of course, for much of our nation’s history, the equal protection clause was not enforced, as many laws were not fairly applied to Blacks, other minorities and women. This egregious legal wrong has been righted, but the repercussions from more than 150 years of misapplying the law are still being felt.
So it’s understandable – and commendable – that programs intended to redress prior discrimination exist. These programs just can’t also be discriminatory by favoring one ethnicity at the express expense of another.
Unfortunately, Alexandria’s now paused program flagrantly did just that. By limiting applicants to “BIPOC” – Black, Indigenous, people of color – ethnic groups, the program was explicitly designed to favor certain ethnic groups at the expense of others.
Virginia Attorney General Jason Miyares was correct in saying in an amicus brief that “The Program parcels out public money expressly on the basis of skin color, granting money to members of preferred racial groups and denying it to all others. …”
Yes, Tridentis, the company that filed suit, was an unlikely applicant for a local program aiding small businesses. And the legal firm representing Tridentis has been connected to former President Donald Trump. Those facts are irrelevant to the largest fact: that Alexandria’s program was ill-conceived and obviously unconstitutional.
This begs several questions. Who was giving legal advice to the city as this minority business program was being developed? Did they really not understand that the construct would not survive close scrutiny? If so, the city needs new representation.
Conversely, if the illegality of this program was understood – and consciously disregarded – that speaks to a far more serious problem. Willful disregard of the law, even in pursuit of a laudable end, is unacceptable.
This was either a case of “it’s only illegal if we get caught” or “oops I forgot about the Fourteenth Amendment.” Both make Alexandria look bad.