The State of Oregon continues to defend a state program that distributes federal coronavirus relief funds to black people — and only black people — after two separate lawsuits have challenged the program as a violation of the U.S. Constitution.
The Oregon state legislature’s Emergency Board created the Oregon Cares Fund this summer — with nightly Black Lives Matter riots raging in Portland — to allocate $62 million in funds from the federal Coronavirus Aid, Relief, and Economic Security (CARES) Act to black residents (out of $200 million in total funds). The Oregon Cares Fund website states:
The Oregon Cares Fund is a targeted investment in the Black community from the CARES Act Coronavirus Relief Fund. This fund is meant to provide the Black community with the resources it needs to weather the global health pandemic and consequent recession. The Oregon Cares Fund is for Black people, Black-owned businesses, and Black community based organizations.
At the time, the Oregon Legislative Counsel warned that the program might be unconstitutional, especially because the legislature had not shown evidence that past discrimination was responsible for black Oregonians’ suffering during COVID:
As discussed below, we think the program may potentially, but would not necessarily, violate the equal protection clause of the United States Constitution and the privileges and immunities clause of the Oregon Constitution.
Under the Fourteenth Amendment to the United States Constitution, which prohibits states from denying “equal protection of the laws” to individuals, state laws that classify individuals according to race or gender are subject to special scrutiny.
We are not aware of any evidentiary findings by the legislature or the Emergency Board in support of the OBDD grant program at issue here. Without any such findings, the program would almost certainly be unconstitutional under the Fourteenth Amendment.
Article I, section 20, of the Oregon Constitution, prohibits the state from providing privileges or immunities to a class of citizens if the privileges or immunities do not apply on the same terms to all citizens.
Two federal lawsuits have been filed: one by a logging company, Great Northern Resources; and the other by a Mexican-American coffee shop owner, Maria Garcia. (For her trouble, she has been labeled by Latino “leaders” as “anti-Black.”)
In a Facebook post last month, Revolucion announced its lawsuit, and was attacked by left-wing critics on social media:
Revolucion coffee house downtown Portland is showing it’s antiblackness. This place is 🚮🚮🚮 pic.twitter.com/uUAP7Nog4q
— bitter jaded absence (@betterjustask) November 22, 2020
As the Wall Street Journal‘s James Freeman noted on Saturday, a federal judge already denied Great Northern Resources’ attempt to block further disbursements from the fund, but has yet to rule on the underlying constitutional issues in the case.
The first lawsuit is being funded by the Project on Fair Representation, which describes itself as “a nonprofit legal foundation based in Arlington, Virginia” whose mission “is to challenge in state and federal courts government distinctions and preferences made on the basis of race.”
Oregon Gov. Kate Brown (D) and Attorney General Ellen Rosenblum said last month: “The data show that Black Oregonians are experiencing disproportionate harm from COVID-19. … We must not allow pernicious and ideologically-motivated lawsuits to impede our efforts to deliver critical resources to Oregonians amid a devastating pandemic.”
Joel B. Pollak is Senior Editor-at-Large at Breitbart News and the host of Breitbart News Sunday on Sirius XM Patriot on Sunday evenings from 7 p.m. to 10 p.m. ET (4 p.m. to 7 p.m. PT). His newest e-book is The Trumpian Virtues: The Lessons and Legacy of Donald Trump’s Presidency. His recent book, RED NOVEMBER, tells the story of the 2020 Democratic presidential primary from a conservative perspective. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. Follow him on Twitter at @joelpollak.