The 2,701 page bipartisan infrastructure bill released Sunday includes a spending item partly based on race.
On pages 2093 and 2094 of the bill, “digital equity” grants, which are intended to “ensure” that Americans have access to “affordable” “wireless internet service,” will be allocated in part to those considered a “covered population.”
Among other definitions, the same pages define a “covered population” as a “racial or ethnic minority.”
Page 2113 states how money will be divvied according to race:
25 percent of the total grant amount shall be based on the number of individuals in the eligible State who are members of covered populations (racial or ethnic minority) in proportion to the total number of individuals in all eligible States who are members of covered populations (racial or ethnic minority).
Upon the money being partly awarded based on race, the provision of the bill may fail a strict scrutiny test, a form of judicial review that courts use to determine the constitutionality of certain laws.
“Due process of law,” which is phrased in the Fifth Amendment, “tends to secure equality of law in the sense that it makes a required minimum of protection for every one’s right of life, liberty and property, which the Congress or the legislature may not withhold,” Chief Justice Taft first wrote in the 1920s.
“Our whole system of law is predicated on the general, fundamental principle of equality of application of the law,” Taft concluded.
The bill, which Republican Senators currently support, also includes “gender identity” as a protected class.
The bill reads on page 2149:
No individual in the United States may, on the basis of actual or perceived race, color, religion, national origin, sex, gender identity, sexual orientation, age, or disability, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity that is funded in whole or in part with funds 16 made available to carry out this title [emphasis added].
It should be noted that President Biden’s 2021 coronavirus package, the American Rescue Plan, does not include the phrase “gender identity.”