Abstract 

Excerpted From: Daniel Choma, Facilitating Race-Conscious Targeted Purchasing Programs in the Shadow of the Trump Judiciary, 49 Mitchell Hamline Law Review 713 (June, 2023) (243 Footnotes) (Full Document)

I live next to an economic thoroughfare that stretches between the State Capitol Building and the University of Minnesota. University Avenue's steady march of pavement keeps time with melodramatic long shadows beneath the arc of the sun like it is in a Western movie or a disciplined prayer of hope to the East. Small buildings line the street like soldiers proudly saluting the light rail. The light rail responds like a church congregation speaking customers into open business doors. The owners of these businesses are diverse in a way that would make Emma Lazarus dance happily in her grave: a scrappy bunch that defies the uninitiated to call them wretched. Included among these businesses are proud barbershops, delicious restaurants, and fearless dance studios. These diverse businesses are emblematic of the promise that Emma Lazarus bronzed into the Statue of Liberty, describing this country as a golden door whose shining light is cultural plurality. Recent economic policy by the federal government and a global pandemic threatens to snuff this light out.

On March 16, 2020, in the face of an unprecedented pandemic posing potentially deadly risks to community health, the Governor of Minnesota issued an executive order which closed "bars, restaurants, and other places of public accommodation" in pursuit of public health and safety. In the following year, businesses owned by historically marginalized people, often called "minority-owned businesses," witnessed a full political denial of the pandemic that hindered their business activity, state attempts to help their businesses in the face of the pandemic, and subsequent disparate negative business impacts. As the stretch of commerce by my home slowly awakens from the COVID-19 pandemic, it has become clear that businesses owned by historically disadvantaged individuals have fared worse in the pandemic than businesses owned by historically advantaged individuals.

Even in the face of an unprecedented pandemic that disproportionately burdens historically disenfranchised businesses, federal courts appear to be further interpreting statutes designed to help historically disenfranchised businesses according to the suspect concept of "reverse racism," wherein businesses which identify as white-owned argue they are aggrieved because Congress implemented statutes designed to rectify historical racism--which they as white-owned businesses never experienced. One reason for this is the recent shift towards conservative jurisprudence effectuated by Donald Trump's judicial appointments. Accordingly, this Note seeks to give practical advice-- in the context of the recent changes to the federal bar--to local municipalities that desire to create fair economic opportunities using remedial race-conscious targeted purchasing. This Note will also provide a history of equal protection cases that may give cities the tools they need to continue to remediate historical economic discrimination.

First, this Note will begin with a history of affirmative action jurisprudence from Fullilove to Croson. Subsequently, it will explore how the recently penned Vitolo opinion represents a cultural shift for the bench. This shift may be impactful as the Court decides the future of affirmative action with Students for Fair Admissions Inc. v. President & Fellows of Harvard College. Finally, this Note will explore practical steps a municipality may take using race as a factor to remediate economic discrimination.

[. . .]

Communities governed by local municipalities find themselves digging out from the COVID-19 pandemic with even worse income inequality across racial categories than when the pandemic started. Using race-conscious targeted purchasing can ensure diverse small businesses thrive. Race-conscious targeted purchasing can remain a useful policy tool for a municipality that holds equity as a value.

This will certainly present a challenge for government units in the shadow of a federal bench that has recently shifted to be much more conservative. Vitolo v. Guzman is an especially stylized example of this shift. The Court is further set to interpret or declare changes to affirmative action law with a direct challenge in next year's Students v. Harvard. However, the Court left a roadmap with Parents v. Seattle that may yet inform a path forward for race-conscious targeted purchasing.

Though changes are imminent, context still matters in affirmative action. Discrimination still objectively exists and can be shown with objective data. Because of this, Justice O'Connor's admonition that strict scrutiny is inextricably connected to relevant differences may allow race-conscious evidence to continue to show historical discrimination. A clever municipality can potentially continue to use race-conscious programs so long as they continue to show relevant differences which pass strict scrutiny. This can be more readily achieved if municipalities adopt more modern data science practices that describe discrimination objectively and clearly. By improving data practices and sharing this objective data with community outreach, a savvy municipality can continue to address the impacts of discrimination with race-conscious targeted purchasing programs.