DC mayor's racial equity plan violates Constitution, lawyer warns

Washington, D.C. may soon find itself as a defendant in a courtroom if it pushes ahead with a racial equity plan that, critics argue, is unconstitutional.

D.C. Mayor Muriel Bowser, a Democrat, established an advisory committee called the Black Homeownership Strike Force in June 2022 to "combat the racial wealth gap" by making recommendations to increase and support homeownership for Black residents of the nation's capital.

Bowser tasked the group with developing a plan to produce 20,000 new Black homeowners by 2030. That led to a report released by the Strike Force in October outlining a series of recommendations, which the mayor's office reviewed to determine their cost and legality.


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The recommendations included giving homeownership units to Black homebuyers, providing financial support for Black homeowners who want to rehabilitate their homes, and creating a program to support Black homeowners unable to pay their mortgages, among other measures.

Last week, Bowser presented her budget proposal for the next fiscal year and included $8 million to support the Strike Force's recommendations, as well as $10 million for a "Black Homeownership Fund" to sell homes to Black owner-occupant homebuyers.

Now it's up to the D.C. City Council whether to approve the budget and submit it to Congress. But as to what the council should do, one expert and attorney is making his position quite clear, arguing the Strike Force's recommendations are both counterproductive and unconstitutional.

The nation's capital "may find itself the defendant in a courtroom as part of a constitutional lawsuit" if it approves the recommendations, Jack Brown of the Pacific Legal Foundation told Fox News Digital.

Brown explained that, while some of the Strike Force recommendations are "race-neutral," many of the proposals would provide government benefits "specifically on the basis of race" — something that he argues "runs afoul" of the U.S. Constitution. Specifically, he noted, the Supreme Court has held for decades that D.C.'s government can't engage in racial discrimination.

"Even if you're trying to remedy past discrimination, the government must provide actual evidence of the discrimination and narrowly tailor its measures to remedying those problems," said Brown. "With that in mind, broad recommendations that openly favor one racial group would be legally problematic."

Instead, Brown argued, if D.C. wishes to improve housing for residents, its government should pursue ideas like reforming zoning laws and protecting homeowners from solicitation — some of which are contained in the Strike Force recommendations — that "help everyone, especially those in need," not just a specific race.

Beyond the legal argument, Brown made the case that the Strike Force's recommendations undermine the notion of an equal society.

"The council should reject the Strike Force's proposals," Brown wrote in a recent op-ed for The Hill. "Race-based policies undermine our nation's long struggle to eliminate racial discrimination from public life and to ensure that the United States remains a nation 'dedicated to the proposition that all men are created equal.'"

Brown added that equal protection of the law would be replaced by the dominance of equity, which prioritizes racial identity in decision making and public policy.

Brown echoed these points in his interview with Fox News Digital, questioning the wisdom of implementing race-based policies even in pursuit of noble goals.

"I'm highly skeptical of any race-based solution to these problems, especially when they stem from events and policies that happened a long time ago," said Brown, who then referenced Supreme Court Chief Justice John Roberts' famous line from an opinion for an affirmative action case: "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."

"Like Roberts, I don't think we should discriminate based on race, period," said Brown. "Everyone should be treated as individuals, as who they are, not based on something surface level like race."


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Brown added that the Strike Force recommendations are in keeping with D.C.'s draft Racial Equity Action Plan, the final version of which is expected to be released this spring. He argued such a mindset will lead to further government services based on race rather than need, noting the ongoing push in California to provide Black residents there with billions of dollars in reparations as a chief example.

Bowser's office and Phil Mendelson, the chairman of the D.C. City Council, didn't respond to requests for comment for this story.

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