Comparison of Biden and Evanston Race-Conscious Policies In 2021, the Biden administration created a loan forgiveness program that excluded white farmers, on the argument that Black people had suffered historical damages. It was ruled unconstitutional and a violation of equal protection. (Wynn v. Vilsack et al) In 2023, Evanston, IL created a mortgage assistance program that excluded white, Asian, Hispanic, and other homeowners on the argument on the argument that Black homeowners had suffered historical damages. Notably, the program excludes not just Asian and Hispanic homeowners, but also LGBTQIA2S+, Catholic, Muslim, and many other people who were excluded based on the same housing policies. What is the difference? I'm only looking for a comparison of the laws. This is not a duplicate of a straightforward analysis because I'm not looking for a full constitutional analysis, only an explanation of difference. Helpful information: full text of decision. I anticipated that the wording would include all racial groups that suffered discrimination, but I was surprised that the racial test is &quot;having origins in any of the Black racial and ethnic groups of Africa&quot;. (Page 2, &quot;Participant Eligibility&quot;)
The situations cannot reasonably be compared legally. In Wynn v. Vilsack, a motion for preliminary injunction was granted (and the program was not ruled unconstitutional). In the ruling, the court found that the evidence &quot;does not support a finding that USDA continues to be a participant, passive or active, in discrimination&quot;, and does find that there were past successful remediation efforts, thus &quot;the Court expresses serious concerns over whether the Government will be able to establish a strong basis in evidence warranting the implementation of Section 1005's race-based remedial action&quot;, moreover &quot;Plaintiff has convincingly shown that the relief provided by Section 1005 is not narrowly tailored to serve that interest&quot;. The court finds that there is a good-enough case that the law fails strict scrutiny. Incidentally, Congress repealed that law. On the other hand, in Evanston, we have no facts or concrete legal allegations (e.g. drafts of a legal complaint). The cited memorandum is a recommendation, not a law. There does exist at least one available council action from 2019 which says that The Chief Financial Officer is hereby authorized to divert all adult use cannabis funds received by the Illinois Department of Revenue for sales of adult use cannabis to a separate fund in a City account for local reparations. SECTION 3: The City may receive donations to this fund from separate organizations, corporations, and individuals established herein by the City Council. The city also has a page referring to Ordinance 102-O-20 (not available) indicating that &quot;The Committee will work with residents, City staff and experts to explore and identify programs and opportunities to be supported by the Reparations Fund&quot;. The Program Guidelines §3 indicates that a person may be eligible for money if they are an ancestor, direct descendant, or &quot;other&quot; who has suffered from a &quot;City ordinance, policy, or procedure that served to discriminate against the Applicant in the area of housing&quot;. It thus does not exclude Asian and Hispanic homeowners, LGBTQIA2S+, Catholic, Muslims or anyone else, except insofar as a Catholic was not demonstrably the victim of such discrimination. The city also provides an extensive historical study of past government discrimination in housing. You may be able to eke out more concrete information on what they have done here, at the reparations committee website. In terms of potential differentia between the USDA program and the Evanston program, the most obvious difference would be in terms of prior remediation efforts. If you sue Evanston for their program, they could defend the program as providing the remediation that justifies the program – which had already been provided in the USDA program.
In this context, the phrase "there are no equitable considerations that would require the court to reduce or deny reimbursement for the parents" largely refers to defenses to claims arising under the law of equity as applied historically in the chancery courts of England, and more recently, to claims of a type that would have been brought in equity courts if there were still a separate equity court system. Two of the more common equitable defenses are "unclean hands" and "laches". The equitable defense of "unclean hands" applies when the person seeking relief has engaged in misconduct of some kind in the same transaction. For example, if "the student was denied a FAPE at their public school placement" because the student had previously been expelled for beating up another kid (especially if this had nothing to do with the reason that a FAPE is needed) or because the parents ignored a deadline for filing the application for a FAPE at their public school of which they had reasonable advanced notice, that student's parents might be denied reimbursement under the doctrine of unclean hands. The equitable defense of "laches" applies when unreasonable delay on the part of the person seeking relief causes prejudice to the person from whom relief is sought even in the absence of a date certain deadline or before a date certain deadline expires. For example, suppose that "the private school was an appropriate placement" but it had tuition three times as high as two other private schools in town. If the other two less expensive private schools had vacancies for months after the student was denied a FAPE at their public school placement, but had no room for new students a week before school started leaving only the much more expensive private school with any vacancies, the request might be denied, or limited to the amount that would have been paid if the parents had applied to other private schools more promptly, under the doctrine of laches. Other equitable defenses include the duty to mitigate damages (e.g. there might be reimbursement for private school tuition, but not for late fees and interest that could have been avoided), impossibility and impracticability (e.g. no public or private placement is capable of addressing the fundamental problem that the child is in a catatonic state), acts of god/force majeure (e.g. the student was denied a FAPE because the school was destroyed in a hurricane and the school district had to shut down the schools for everyone for a semester), implied waiver or estoppel (e.g. after the student was denied a FAPE the student was enrolled for regular classes at that public school without complaint and without trying to find a private school placement), spoliation (e.g. the records needed to determine eligibility were intentionally destroyed by the applicant before the hearing), fraud as a defense and not a claim (e.g. the parents lied in their reimbursement application), payment (e.g. the student was denied a FAPE by two schools and already received reimbursement from another one and is not entitled to a double recovery), release or accord and satisfaction (e.g. a settlement agreement was already reached with the school denying reimbursement or agreeing to a particular reimbursement).
Interesting question. I routinely write wills that authorize the executor to destroy property that has no significant economic or sentimental value, but I've never encountered a case where a testator or testatrix has directed that property be destroyed and I've never seen a reported case (or even a news report) in which that has happened. To the extent that an estate is solvent, there is no reason that a creditor could complain and if the destruction was done in a safe manner (as opposed to burning down a house or something like that without consulting the fire department) I'm not sure that there would be a public interest in doing so either. There are many religions that had a practice historically of burying someone with grave goods, so there are reasonable First Amendment freedom of religion arguments for allowing such a practice if it had a religious basis. And, if no interested party objected, I don't see how anyone could stop the executor from acting, unless the property to be destroyed was, for example, evidence of a crime, in which case it would be a crime to destroy it and the provision of the will would be void because it was a crime to carry it out. If an executor sought permission from a court to carry out this instruction, the court might require a public notice of the planned destruction to give notice to any third party who might claim an ownership interest in the property allegedly belonging to the decedent. On the other hand, usually, all interested parties in an estate can agree to act contrary to a will by unanimous consent, in which case no one would have standing to fight for the provision in court (unless it was considered a charitable bequest, in which case a state attorney general or an advocate appointed by the court with the "will" as the client could defend it). Given the strong public policies in the law disfavoring "waste" (i.e. useless destruction of property) such a provision could be held to be void as against public policy (similarly, bequests contingent upon marriage decisions are now void as against public policy).
The 13th to 15th Amendments to the U.S. Constitution are called the &quot;civil war amendments&quot; as they were enacted in the fallout from the U.S. Civil War. The 15th Amendment specifically addresses racial discrimination in voting rights, which was emerging as an issue a federal occupation of Southern states was receding and the segregation regimes that persisted until the 1960s, almost a century later, replaced slavery (which was abolished, de jure, and to a great extent, in practice). The 13th Amendment abolishing slavery, comes very close, because at the time that it was adopted, slavery was almost exclusively imposed on African-Americans (the Emancipation Proclamation during the Civil War was the proximate legal cause of ending slavery for most U.S. slaves, although it took a fair amount of time to be fully implemented because the U.S. did not control much of the territory it applied to at the time). The 14th Amendment was also race conscious, not by its express text, but by what is displaced. Section 1 removed the denial of citizenship for former slaves (an almost entirely African-American population), and expressly required the state to afford the new citizens equal protection of the laws and due process. Section 2 removed the three-fifths compromise from Congressional apportionment that had counted African-American slaves as less than a full person in the pre-14th Amendment status quo. Section 4 invalidated efforts to pay reparations to former slave owners. Specifically, they state: 13th Amendment Section 1 Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. Section 2 Congress shall have power to enforce this article by appropriate legislation. 14th Amendment Section 1 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. Section 2 Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State. Section 3 No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability. Section 4 The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void. Section 5 The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article. 15th Amendment Section 1 The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude. Section 2 The Congress shall have the power to enforce this article by appropriate legislation. When Justice Scalia meant said that: The Constitution explicitly protects racial minorities, that's what we fought a civil war about, and the fourteenth amendment prevents / forbids refusal to give equal protection of the laws in particular with respect to race. So my Constitution protects that explicitly. He is putting the equal protection clause of Section 1 of the 14th Amendment in the context of the rest of Section 1 of the 14th Amendment, which gave to former slaves citizenship (implicitly a race based change) that was fortified with provisions including the equal protection of the laws that they had been denied before it was adopted while all other adult men of those days had. More broadly, he is discussing this in the larger context of the Civil War Amendments and in the context of the legislation that was enacted by Congress pursuant to the enforcement clauses of the 13th, 14th and 15th Amendments. What these amendments do to protect racial minorities is to give them equal treatment when prior to their enactment they were given unequal treatment. Brown v. Board of Education which he discusses in the same breath, furthermore gives the 14th Amendment its modern meaning overruling Plessy v. Ferguson whose &quot;separate but equal&quot; interpretation of the equal protection clause of the 14th Amendment had facilitated the Jim Crow regimes of segregation in the South because after more than half a century it had become clear that separate was almost never actually equal in practice. As a footnote, the 14th Amendment Privileges and Immunities clause in Section 1 of that amendment was intended to be the greater of the Section 1 protections, but was gutted early on by the Slaughterhouse Cases that interpreted it in a manner that made it virtually irrelevant, continues to be good law. There is no Brown v. Board of Education counterpart overruling the Slaughterhouse cases the way that Brown repealed Plessy. Where is written in the 14th Amendment that race is a protected minority? The context and legislative history of the equal protection clause of the 14th Amendment, as enforced by contemporaneous enforcement legislation adopted by Congress, was clear to all in its meaning (even to textualist leaning originalists like Justice Scalia) that it first and foremost applied to the discrimination based upon race and former condition of servitude that the 15th Amendment called out explicitly. The notion of a &quot;protected minority&quot; isn't a very clean or helpful way to think about what the 14th Amendment does, however. Instead, it prohibits de jure legal discrimination based upon race and upon other factors that have been determined to constitute impermissible means of making legal distinctions. The notion of the 14th Amendment and anti-discrimination laws as conferring special treatment on &quot;protected minorities&quot; has not been the story of American civil rights law, unlike the case in Canada, for example, which uses a legal theory framework of vindicating and benefiting oppressed minorities, rather than less ambitiously, merely aiming for racial equality in the law. Justice Scalia's choice of words in the quoted material reflects the cultural lean of conservative politicians in the U.S. who have often tried to frame anti-discrimination law in this way, contrary to most (but not quite all) U.S. civil rights law legal theory (voting rights have more of a anti-oppression model, in part, due to the relevant Congressionally enacted enforcement legislation, especially the Voting Rights Act).
Probably not. There is an unenumerated constitutional &quot;right to travel&quot; (which has been recognized in case law, and has not yet been judicially overruled) and there is also a concept called the &quot;dormant commerce clause&quot; which prohibits legislation by a state that interferes with the ability of people to engage in interstate commerce even if Congress has passed no relevant legislation. There could also be a privileges and immunities clause argument arising under the original 1789 constitution and not the 14th Amendment to that document privileges and immunities clause, which affords people from outside a state the same rights as people in a state. Also, citizens of a state are defined as its residents, so a state only has jurisdiction over someone as a citizen for so long as they reside there. I was born in Georgia, for example, but haven't lived there since I was six years old, so I am not a citizen of Georgia. The proposed Texas law bears some similarity to the Mann Act of 1910 which prohibits transporting people across state lines for the purposes of prostitution (to slightly oversimplify). But the Mann Act is a federal law, not a state law. The proposed Texas law also bears some similarity to the infamous Fugitive Slave Act of 1850 which required free states to respect the slave status of people treated as slaves in a slave state under the slave state's law by returning fugitive slaves to their out of state masters, when the slave escaped across state lines. But, this was also a federal law and reflect the greater extraterritorial force of contracts and property rights created under state law compared to the extraterritorial force of the police powers of a state government. There are constitutional provisions requiring states to honor each other's rulings as well, most notably the requirement to extradite felons, and the full faith and credit clause that requires states to honor the court judgments and government determinations of status (e.g. marriage certificates) of other states in most circumstances. But, I don't think that you get there in a case regulating the conduct of a state resident outside the state, or in a case where you want to criminalize assisting someone in the state to leave the state for a particular purpose. Neither of these examples, however, involve state laws. Generally, penalties for doing something across state lines need to be established by federal, rather than state, laws. This said, the issue has not been litigated in this particular context yet, and the legal theories implicated and structure of those lines in fine particulars could matter. States have only rarely tried to regulate the conduct of their residents outside their own states and have even less frequently been successful in doing so.
Justice Gorsuch attempts to explain (at p. 20 of his concurrence): In the years following Bakke, this Court hewed to Justice Powell's and Justice Brennan's shared premise that Title VI and the Equal Protection Clause mean the same thing. ... As a result, for over four decades, every case about racial preferences in school admissions under Title VI has turned into a case about the meaning of the Fourteenth Amendment. A journalist's account on scotusblog also notes that the tests under Title VI and under the 14th amendment have been understood as identical: Private universities like Harvard are not subject to the 14th Amendment, but Title VI applies the same test to private universities that receive federal funds, as Harvard does. See also commentary from a law firm blog in 2022: Harvard, as a private university, is not explicitly regulated by the Fourteenth Amendment. Instead, the case against Harvard relies on Title VI of the Civil Rights Act of 1964, which prohibits any entity receiving federal financial assistance – as Harvard does – from discriminating on the basis of “race, color, or national origin.” The Supreme Court has held that Title VI’s protections match those of the Fourteenth Amendment’s Equal Protection Clause, and thus, the analyses are essentially identical. I read the majority reasons to be a continuance of this conflated meaning. In footnote 2, Chief Justice Roberts is careful to say that the Court is evaluating Harvard's admissions program &quot;under the standards of the Equal Protection Clause&quot; (emphasis mine), rather than stating that the Equal Protection Clause applies against Harvard. Later, he does slip back into language that could be read as suggesting the Equal Protection Clause is being applied directly: &quot;For the reasons provided above, the Harvard and UNC admissions programs cannot be reconciled with the guarantees of the Equal Protection Clause,&quot; but a better reading is that he is merely recognizing that Title VI imports the same guarantees of the Equal Protection Clause. Justice Gorsuch would prefer to re-introduce the analytical clarity about the source of the constraints.
This policy would appear to have a disparate impact on workers age 40 and older, given that most workers obtain degrees in their 20s and few obtain a second degree later. Workers age 40 and older are protected from employment discrimination under the ADEA. Policies with a disparate impact may be considered discriminatory, but not necessarily. The EEOC rule as of 2012 is that such a policy is not illegal if it is based on a "reasonable factor other than age". It is not clear to me whether the 10-year degree policy would pass this test, and it might depend on how the employer justified the rule. Here is the discussion from the EEOC's FAQ: 8.What determines whether an employment practice is based on Reasonable Factors Other than Age? An employment practice is based on an RFOA when it was reasonably designed and administered to achieve a legitimate business purpose in light of the circumstances, including its potential harm to older workers. Example 1: If a police department decided to require applicants for patrol positions to pass a physical fitness test to be sure that the officers were physically able to pursue and apprehend suspects, it should know that such a test might exclude older workers more than younger ones. Nevertheless, the department's actions would likely be based on an RFOA if it reasonably believed that the test measured the speed and strength appropriate to the job, and if it did not know, or should not have known, of steps that it could have taken to reduce harm to older workers without unduly burdening the department. The rule emphasizes the need for an individualized consideration of the facts and circumstances surrounding the particular situation. It includes the following list of considerations relevant to assessing reasonableness: The extent to which the factor is related to the employer's stated business purpose; The extent to which the employer defined the factor accurately and applied the factor fairly and accurately, including the extent to which managers and supervisors were given guidance or training about how to apply the factor and avoid discrimination; The extent to which the employer limited supervisors' discretion to assess employees subjectively, particularly where the criteria that the supervisors were asked to evaluate are known to be subject to negative age-based stereotypes; The extent to which the employer assessed the adverse impact of its employment practice on older workers; and The degree of the harm to individuals within the protected age group, in terms of both the extent of injury and the numbers of persons adversely affected, and the extent to which the employer took steps to reduce the harm, in light of the burden of undertaking such steps. Here is the full text of the rule, 77 FR 19080.
Short Answer Can a university continue with their affirmative action program by rejecting all government funding? Yes. The Status Quo There are twenty-two higher educational institutions in the United States that did this prior to the 2023 ruling (in all but one trivial case, in part, in order to affirmatively escape the requirements of Title VI, so that they could discriminate in furtherance of a religious mission). Most of the schools on the list refuse not only federal but also state and local government aid. Specifically, they are: Aletheia Christian College (Idaho) Bethlehem College &amp; Seminary (Minnesota) Boyce College (Kentucky) Christendom College (Virginia) Faith Bible College (Maine) Grove City College (Pennsylvania) Gutenberg College (Oregon) Hildegard College (California) Hillsdale College (Michigan) Mid-America Baptist Theological Seminary (Tennessee) Monticello College (Utah) Mount Liberty College (Utah) New College Franklin (Tennessee) New Saint Andrews College (Idaho) Patrick Henry College (Virginia) Pensacola Christian College (Florida) Principia College (Illinois) Sattler College (Massachusetts) Southern Baptist Theological Seminary (Kentucky) Southwestern Baptist Theological Seminary (Texas) Weimar University (California) Wyoming Catholic College (Wyoming) There used to be more, but most of the hold outs eventually gave in, or ceased to be. Notably, the vast majority of parochial colleges and universities in the U.S. are subject to Title VI because they accept federal funds and federal financial aid. All of them, except Monticello College in Utah, are non-profit colleges or universities with a religious affiliation or mission. Several are partially, or entirely, seminaries devoted to training future clergy. Monticello College has only four teaching faculty (including its President) and two administrators, has no more than 30 students at any one time, was apparently established in 2010, was &quot;for profit&quot; until at least 2019, and is unconventional to the point of barely being recognizable as a conventional institution of higher education, for example, including a substantial manual labor component and teaching courses in blocks of two days to three weeks. Monticello also voluntarily adheres to a non-discrimination policy comparable to the one that applies to Title VI institutions. Only two of them, Grove City College and Hillsdale College, have 1,200 or more students. By comparison, there are 3,982 colleges and universities in the United States, so this is less than 0.6% of U.S. colleges and universities, and a far smaller percentage of U.S. college students as all of these institutions are all small by college and university standards. About half of private non-profit colleges and universities (about 800 of them) have 1,000 or fewer students, so about 2.5% of small private non-profit colleges do not receive federal funding, but only 0.25% of larger private non-profit colleges and universities do. All &quot;for profit&quot; colleges or universities in the U.S. (almost 700 of them) rely upon federal financial aid and/or federal funding. As a practical matter, almost all of the 99.4% of colleges and universities in the U.S. that rely upon federal financial aid and/or federal funding could not sustainably continue to operate with anything close to their current business models without this federal support. They would either have to close, or would have to radically restructure themselves. Non-Title VI Considerations Also, while not quite as stringent as Title VI, the U.S. tax code also denies tax-exempt status to certain non-profits that discriminate based upon race. See 26 U.S.C. § 501(i) (social clubs). Most higher educational institutions are not subject to this requirement directly, but for example, the Rotarians could not do charitable work for a college that discriminated based upon race as interpreted by the 2023 SCOTUS ruling. Additional Considerations Regarding Impact Few private colleges and universities have much of a reason to withdraw from federal funding to allow them to continue affirmative action programs based upon race because not all that many of them have admissions policies which are strongly affected by affirmative action based upon race. Affirmative action really only has a big impact at colleges and universities that are highly selective, like Harvard and the University of North Carolina, whose admissions policies were litigated in the U.S. Supreme Court. But these universities are highly atypical. As noted in a recent article in the New York Times, while Harvard admits just 4% of applicants, and UNC admits 20%, just 6% of U.S. four year college students attend a college with an admissions rate of 25% or less (just 22 colleges and universities admit 10% or fewer of the prospective undergraduate students who apply). Another 10% of U.S. four year college students attend a college with an admissions rate of more than 25% but less than 50%. Meanwhile 56% of U.S. four year college students attend a college that admits at least 75% of its applicants. While the impact of ending affirmative action at highly selective institutions is likely to be significant, this is the exception rather than the rule. The impact of ending affirmative action based upon race in less selective institutions, while not zero, is barely noticeable. The effects of ending race based affirmative action at these school is also much more easily mitigated with race-neutral programs (like preferences for first generation college students, low income college students, or students with high class ranks in high school) with similar effects in student diversity, in less selective institutions, than it is at highly selective colleges and universities. Also, less selective colleges and universities already have a disproportionate share of students who currently tend to benefit from affirmative action as show in the chart from the same New York Times story below: