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Goldburn P. Maynard Jr., Biden’s Gambit: Advancing Racial Equity While Relying on a Race-Neutral Tax Code<, 131 Yale L.J. Forum 656 (2022).

Professor Goldburn Maynard’s excellent Essay: Biden’s Gambit: Advancing Racial Equity While Relying on a Race-Neutral Tax Code, analyzes the Biden’s Administrations efforts to advance racial equity through the American Rescue Plan Act (ARPA) enacted by Congress and signed into law on March 11, 2021.

The first executive order that President Biden signed once sworn into office was Executive Order No. 13,985, designed to advance racial equity throughout his Administration including various federal agencies. ARPA contains some provisions that exemplify the language and spirit of Executive Order No. 13,985. That set the new Administration on a collision course with the Department of the Treasury (Treasury) and the Internal Revenue Service (IRS), which have both been devoted to the idea of colorblindness when it comes to tax data. The IRS for example does not publish statistics by race, even though it has done so by age and gender. As Professor Maynard points out, Biden Administration efforts also conflicted with federal courts, which similarly operate with a colorblind jurisprudence. In Professor Maynard’s observation, parts of ARPA, such as distributing aid through the tax system, only indirectly and inadequately pursued racial equity goals. Others, such as debt relief for socially disadvantaged farmers or ranchers, were colorblind casualties.

As Professor Maynard points out, racial equity does not rely on equal treatment, but fairness in treatment including access to resources. Racial equity seeks to address historical disparities and minimize or eliminate systemic racism.

But let’s begin at the beginning…what is racial equity? Professor Maynard provides the overall definition, which “requires treating individuals differently based on need.” (P. 661.) He notes that programs targeted at reducing or eliminating poverty do not satisfy the definition of racial equity, as racial equity requires a “more comprehensive dismantling of oppressive systems.” (P. 663.) In one of the article’s signature contributions, he provides us with three questions that help identify whether a provision or policy promotes racial equity in the long run.

(1) Does the policy target individuals or groups based on need?

(2) Is the policy race conscious either by targeting aid to a racial group, ensuring equitable delivery of benefits, or ensuring that they are disproportionately targeted at disadvantaged minorities?

(3) Does the policy tackle root causes of racial inequality and remove barriers keeping certain racial groups disadvantaged? (P. 664.)

There were ARPA provisions that targeted the poor and disproportionately helped racial minorities, yet there were other programs that were specifically designed to address the root causes of current disadvantage by addressing systemic racism. The expanded child tax credit extended to Americans with no taxable income was an example of the former, while the debt relief program for disadvantaged farmers was an example of the latter.

As Professor Maynard describes it, a good portion of the stimulus package in ARPA, including the expanded child tax credit, was focused on distributing aid through our tax system. One of the many strengths of the article is his observation of the irony of the Administration using the tax code to advance racial equity given how “the IRS does not collect racial data on taxpayers. Rather, it exists as a colorblind agency, with neither the Form 1040 asking about race nor the agency including race or ethnicity in its published data analysis.” (P. 658.) He argues that a provision like the child tax credit addresses racial equity indirectly and inadequately, burdened by the disadvantage of the colorblind approach of the IRS and Treasury.

While Professor Maynard describes five policies or programs in ARPA that more squarely addressed systemic racial inequity relating to education, farming, housing, small businesses, and state and local aid, I want to focus on his treatment of the Biden Administration’s efforts for farmers – specifically black farmers. As Professor Maynard notes “ARPA also sought to address the impact of systemic discrimination on minority farmers.” (P. 669.) He then describes the decades of racial discrimination imposed by the U.S. Department of Agriculture on black farmers that resulted in a civil rights class action lawsuit by black farmers. ARPA included a debt relief provision for “socially disadvantaged farmers or ranchers (SDFR), including Black/African Americans, American Indians or Alaskan Natives, Hispanics or Latinos, and Asian Americans or Pacific Islanders. The Department could pay as much as 120% of each farmer’s or rancher’s debt on loans it made or guaranteed. Any socially disadvantaged borrower with direct or guaranteed farm loans as well as Farm Storage Facility Loans qualified for the aid.” (P. 670.) Almost immediately, a lawsuit was filed by white farmers excluded from the debt relief provisions of ARPA.

This provision could have made significant contributions towards achieving racial equity. But it has been defanged through injunctive relief issued by federal courts. Like IRS and Treasury, federal courts are limited by their colorblindness.

Professor Maynard describes the legal landscape of Supreme Court precedent as treating “efforts to dismantle systemic racism the same as attempts to impose racial segregation.” (P. 673.) He provides an excellent and accessible primer on Supreme Court precedent which makes government policies that classify people by race presumptively unconstitutional. In order to rebut the presumption, the government must show that it is necessary to support one race over another in order to “achieve a compelling state interest.” (P. 674.) But even if a government can show a compelling state interest, the government policy must be “narrowly tailored.” He correctly points out that this is a standard which “few programs survive.” (P. 674.) Unsurprisingly, a federal district court granted a preliminary injunction against the Biden Administration on behalf of the white plaintiffs challenging the debt forgiveness provisions in Miller v. Vilsack. The Biden Administration flunked the narrowly tailored requirement when their evidence “did not demonstrate specific instances of intentional discrimination against SDFRs who hold qualifying USDA loans. And any SDFRs who may have experienced racial discrimination but did not hold qualifying loans were not eligible for the relief….” (P. 677.)

Professor Maynard wryly observes that “[w]ith courts standing in the way, [racial equity] must be promoted in a neutral, indirect way that ignores systemic discrimination.” (P. 679.) Perhaps however it is the Biden Administration that should bear some responsibility for not engaging in better fact finding to prove its legislative scheme was narrowly tailored. Nevertheless, Professor Maynard’s conclusion is more than supported by constitutional precedent. Ultimately, Professor Maynard believes what is needed is “both targeted and universal programs to tackle inequality.” (P. 686.)

Professor Maynard ends on a positive note by observing that there is momentum building for racial equity work. He cites as examples sentencing disparities being reduced, support from President Biden for a commission to study reparations for slavery and segregation, and steps the Biden Administration has taken to work towards ending housing discrimination. Here’s hoping that momentum leads to increased racial equity outcomes.

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Cite as: Dorothy Brown, The Biden Administration’s Racial Equity Challenges, JOTWELL (June 9, 2022) (reviewing Goldburn P. Maynard Jr., Biden’s Gambit: Advancing Racial Equity While Relying on a Race-Neutral Tax Code<, 131 Yale L.J. Forum 656 (2022)),