Oregon coronavirus fund may violate Constitution by excluding non-black applicants, experts say

A COVID-19 relief fund for African-Americans operated out of Portland, Ore., with federal tax dollars may run afoul of both the Constitution and 1964 Civil Rights Act if it excludes non-black applicants, legal experts warn.

The Oregon Cares Fund for Black Relief + Resiliency said it seeks to offer "economic relief for the Black community, who are among Oregon's most vulnerable groups due to systemic divestment and disparities widened and exacerbated by COVID-19." The program is administered by two local nonprofits, the Contingent and the Black United Fund of Oregon.

"The Oregon Cares Fund is designed and led by Black leaders for the Black community," the program's website states. The funds are "meant to provide the Black community with the resources it needs to weather the global health pandemic and consequent recession," according to the site

"The Oregon Cares Fund is for Black people, Black-owned businesses, and Black community based organizations," the site states, noting elsewhere that the $62 million in funds it receives are drawn as a grant "from the U.S. Treasury's disbursement of Coronavirus Relief Funds received by the State of Oregon under the Coronavirus Aid, Relief and Economic Security (CARES) Act."

The Oregon legislature announced in mid-July that it had allocated the $62 million "to provide economic relief to Black individuals and businesses."

"National and state data show that the Black community is one of the communities experiencing a disproportionate share of negative economic and health effects due to COVID-19," the legislature wrote.

Federal money cannot go toward racially discriminatory programs

The program's funding stream may run afoul of both federal statute and the U.S. Constitution. Title VI of the Civil Rights Act of 1964 states that "any program or activity receiving Federal financial assistance" is forbidden from racially discriminating against participants.  

The Justice Department goes so far as to stipulate that "all recipients [of federal funds] must comply with Title VI, as well as other antidiscrimination laws, at all times including during emergencies." 

"The prohibition against discrimination on the basis of race ... can never be waived," the DOJ says, adding that "complying with these requirements becomes even more important during emergencies and disasters in order to ensure that no one is unjustly denied the services and support they need during times of crisis, when their physical safety or well-being are often at greatest risk, and when many of the resources they might otherwise have drawn upon for support may not be available."

The Civil Rights Act is statutory law. Yet the program may also violate the Constitution itself. Eugene Volokh, a professor of constitutional law at the University of California, Los Angeles, said that the program seems "pretty clearly unconstitutional," though he stopped short of declaring it as such without more information. 

"If indeed this is a fund for black relief in the sense that only blacks need apply, that violates the Equal Protection clause of the U.S. Constitution," Volokh told Just the News. 

"The Equal Protection clause bans the government from discriminating based on race," he continued. "The Supreme Court has allowed some exceptions under the rubric of race-based action. But it's quite clear that if it's just open to one race, it’s unconstitutional." 

"If an organization considered race-based disadvantages as part of its criteria, that might pass muster," he added. "But a categorical exclusion or hundred-percent quota would not fly."

Ilya Shapiro, the director of the Robert A. Levy Center for Constitutional Studies at the Cato Institute, was more blunt. "For any group that's getting federal funds or tax breaks, racial discrimination is just a constitutional non-starter," he said. 

A spokeswoman for the Oregon Cares Fund, on the other hand, argued that the project passes constitutional muster. She provided Just the News with two separate legal reviews, one by the Oregon Legislative Counsel Committee and the other by the law firm Schwabe, Williamson & Wyatt. 

The LCC review did not directly address the Oregon Cares Fund but instead examined whether "a grant program to provide technical assistance to minority- and woman-owned businesses affected by the COVID-19 pandemic" might violate both federal and state constitutions. 

To avoid that violation, the committee argued, a state program must "develop evidence of inequities caused by racial discrimination and demonstrate that its race-based classification is designed to remediate those inequities" in a narrowly targeted way. 

The law firm's review, meanwhile, directly addressed the Oregon Cares Fund and stated that the initiative is "narrowly tailored" to address historic inequities in a way that satisfies constitutional demands. 

"To be clear, the Oregon Cares Fund does not seek to address the longstanding, general economic disparities experienced by Black Oregonians," the review said. "Rather, it narrowly targets the disproportionate harm, traceable to discrimination, that COVID-19 is causing Black Oregonians in the form of employment and business interruption."

Whether or not the Oregon Cares Fund will ultimately turn away white applicants is not immediately clear on its website. Under its list of qualifications for application, it does not stipulate race in any way, even though the rest of the site stresses heavily the black-oriented nature of the fund.