Constitutional Race-Conscious Policies
<p>In 2021, the Biden administration created a loan forgiveness program that excluded white farmers. It was ruled unconstitutional and a violation of equal protection. (<em>Wynn v. Vilsack et al</em>)</p>
<p>Washington (state) recently passed a law that gives low interest loans but bars applicants of certain races. (HB 1474)</p>
<p>How did Washington try to change this law to avoid being struck down? Presumably Washington legislators are aware of the previous ruling and have modified the new law accordingly.</p>
<p>Ideas:</p>
<ol>
<li>Reduction of loan principle v. loan interest?</li>
<li>Federal law v. state law?</li>
<li>Farm loans v. home loans?</li>
</ol>
<p>They seem to be aware that there is likely to be a constitutional challenge, since Sec 14-15 specify what to do in the case when it is held unconstitutional (it disperses the money without regard to race).</p>
<p>EDIT: The law is explicit that it applies to anyone of a certain &quot;race, national origin, or sex&quot;.  The races, national origins, and sexes will be determined by a committee. Is there precedent for racial testing? <em>Wygant v. Jackson Bd. of Educ</em> and <em>Coral Construction Co. v. King County (1991)</em> limit historical arguments about past discrimination to discrimination by the government in the recent past. Covenants were private and ceased in 1968.</p>
<p>EDIT: Still haven't seen an answer that answers how this is consistent with <em>Wygant v. Jackson Bd. of Educ</em> and <em>Coral Construction Co. v. King County (1991)</em>. Can the government impose race tests based on claims on non-governmental action in the distant past?</p>

<p>Washington's <a href="https://lawfilesext.leg.wa.gov/biennium/2023-24/Pdf/Bills/Session%20Laws/House/1474-S2.SL.pdf?q=20230527161703" rel="noreferrer">HB 1474</a> actually does not give low interest loans to all but white borrowers. It initiates the process of creating a bureaucracy that will eventually provide loans for down payment and closing cost assistance for first-time home buyers (a loan that must be repaid when the house is sold). There are various qualifications that a program participant must meet, such as below-average income, being a resident, and <em>also</em> they must be a state resident before April 11, 1968 or a descendant of someone who was, and</p>
<blockquote>
<p>was or would have been excluded from homeownership in Washington state
by a racially restrictive real estate covenant on or before April
11,28 1968</p>
</blockquote>
<p>The &quot;would have&quot; part refers to the fact that a person may have been interested in buying a particular house but gave up when they were told that there is a racially restrictive covenant associated with the property. It is then the duty of the covenant homeownership program commission to determine what such covenants may have existed, and also</p>
<blockquote>
<p>to what extent existing programs and race-neutral approaches have been
insufficient to remedy this discrimination and its impacts</p>
</blockquote>
<p>The law simply states that eligibility is based on</p>
<blockquote>
<p>a recorded covenant or deed restriction that includes or included
racial restrictions on property ownership or use against protected
classes
that are unlawful under <a href="https://app.leg.wa.gov/rcw/default.aspx?cite=49.60.224" rel="noreferrer">RCW 49.60.224</a></p>
</blockquote>
<p>which would include any covenants against sale to Irish or any other anciently discriminated-against Europeans, if such are found to exist.</p>
<p>Referring to <a href="https://casetext.com/case/wynn-v-vilsack" rel="noreferrer">Wynn v. Vilsack</a>, it was noted that</p>
<blockquote>
<p>A strong basis in evidence cannot rest on an amorphous claim of
societal discrimination, on simple legislative assurances of good
intention, or on congressional findings of discrimination in the
national economy. However, a governmental entity can justify
affirmative action by demonstrating gross statistical disparities
between the proportion of minorities hired and the proportion of
minorities willing and able to do the work.</p>
</blockquote>
<p>Analogous reasoning would apply to government action that deprived individuals of the opportunity to purchase a home based on their race. If (when) this new law is challenged, one of the central questions would be what remedial actions the government(s) took to correct this past discrimination. While it is clear that such discrimination was ended in 1968, it is far from clear that there was any remedial action taken by the state. Of course there is always the possibility that SCOTUS will discover new law that changes the landscape, but as it stands, such corrective actions are legal.</p>

united-states constitutional-law equal-protection