New fund for Black Oregonians faces growing legal pressure
A state fund to help black Oregon and black-owned businesses navigate the COVID-19 pandemic in Oregon is under increasing legal pressure, even as a judge has refused to prevent the State to distribute money.
U.S. District Judge Karin Immergut on Friday rejected a request by an eastern Oregon logging company to block new Oregon Cares fund disbursements of $ 62 million, as a lawsuit challenging constitutionality fund unfolds.
But another lawsuit was filed the same day – this one filed by a Mexican-American coffee owner in Portland. Both lawsuits accuse the state of violating 14th Amendment protections by creating a one-race fund. The complainants claim that their grant applications were unconstitutionally rejected because they are not black.
The lawsuits were ridiculed by the fund’s backers as political attacks, and it is true that one of them is funded by a group that challenges race-based policies across the country. But they also make a point that Oregon legislative lawyers high in july, when the Legislature’s Emergency Council created the fund with federal aid money: that the fund could be unconstitutional unless the state specifically presents detailed evidence of past discrimination against families and black companies.
“We are not aware of any conclusive findings from the Legislature or the Emergency Council in support of the (…) subsidy program at issue here,” said the opinion. “Without such conclusions, the program would almost certainly be unconstitutional under the Fourteenth Amendment. “
Supporters of the fund have argued that there is ample evidence to help black people in Oregon. Lawyers representing The Contingent, a nonprofit that plays a leading role in the administration of the fund, argued in July that, without such an effort, nearly $ 1.4 billion in federal aid granted to Oregon would be greatly missed by blacks and Oregon companies.
“Without targeted legislation, COVID-19 will exacerbate the past disparate impacts of discrimination, giving rise to both the imperative and legal rationale for the state to take race-conscious action on blacks, businesses owned by black people and black community organizations. , ” a brief submitted to the Legislative Assembly by lawyers at Schwabe, said Williamson and Wyatt. “These Oregonians are suffering disproportionate economic damage from COVID-19 and yet, in disproportionate numbers, are not being helped by existing and seemingly race-neutral relief efforts. “
The brief then detailed the history of the state’s discrimination against blacks and argued that the damage from that discrimination would be compounded if blacks in Oregon are left behind in the effort to recover from the pandemic.
“Centuries of systemic and institutional discrimination – perpetuated and exacerbated by current systems – have caused economic disparities and exacerbated the vulnerability of the black community,” he said. “The Oregon Cares Fund would ensure that the distribution of CARES funds does not perpetuate racial disparities related to discrimination.
Still, the effort met with skepticism – even from some who applauded what lawmakers aimed to do with the fund. And constitutional scholars OPB contacted about the idea this summer doubted the fund would succeed.
Even with past harms, “legislation that directs money to recipients on the basis of race would be very difficult to defend in court,” said Brian Fitzpatrick, professor of law at Vanderbilt University who wrote on the equal protection clause of the Constitution.
University of Oregon law professor Ofer Raban agreed the legal bar the state must cross is high.
“The Supreme Court has made it clear that such explicit racial classifications are subject to the most rigorous form of constitutional review, even when their purpose is benevolent rather than insulting,” Raban wrote in an email in July. “In principle, addressing past or present societal (non-government) discrimination cannot justify racially-minded government programs, unless the government can show that it is a ‘passive participant’ in such societal discrimination.
As an example of a “passive participant,” Raban gave the example of the state giving money to companies that “actively discriminate” against black citizens.
Despite the difficulties, at least one lawyer in Oregon believes the Oregon Cares Fund has a chance of support. Norman Williams, professor of constitutional law at Willamette University in Salem, said courts could find the fund legal if the state can provide evidence that black people and businesses are disproportionately harmed by COVID-19 and receive disproportionate aid.
“The United States Supreme Court has set the bar high here,” Williams said. “I just don’t think this decision… at first glance fails to meet that threshold.”
The Oregon Cares Fund offers grants of up to $ 3,000 for families and up to $ 100,000 for black-run businesses. Since its inception, the fund has allocated over $ 53 million and disbursed nearly $ 30 million. Under the provisions of the federal CARES Act, its $ 62 million is to be allocated by the end of the year.
This work will continue for now, after Immergut spoke out against John Day-based Great Northern Resources’ request to put an injunction on further grants.
The logging company filed a lawsuit against the state in late October, arguing that it had been financially devastated by the pandemic and that its application for a grant from the Oregon Cares Fund would certainly fail because its owners are not black.
One of the logging company’s first demands: That the court prevent the quota from awarding further subsidies, which Great Northern said would constitute an “irreparable infringement” of its rights. In response, the state and the contingent offered to set aside $ 200,000 that the logging company would be eligible to receive if it won its case.
Immergut ruled on Friday that Great Northern “cannot demonstrate irreparable harm … The question of whether the plaintiff can ultimately prove unconstitutional practice by the defendants will be addressed later in this litigation.”
On the same day, Maria Garcia, owner of Revolucion Coffee House in downtown Portland, filed a similar lawsuit in federal court. Garcia said she was forced to shut down her cafe and lay off employees due to the coronavirus pandemic. She applied for a grant through the Oregon Cares Fund, according to the lawsuit, “and would have received one had it not been for the fact that its owner was of Mexican origin.”
Garcia’s trial news sparked a statement of the Latino Nonprofit Network. Signed by more than 30 leaders of the Latino community, the statement called the prosecution “anti-black” and said Garcia’s actions “do not represent the sentiment of Latinos.”