Recent COVID19 relief packages in the United States include racial justice measures, such as additional funds without repayment for farmers on the basis of race. Although the COVID19 relief itself seems more comprehensible, it sparked a question among friends regarding how other racial justice efforts are regulated.

Take college scholarships, for example. We are aware of a large number of scholarships available only to specific minority races or to women. Naturally, special scholarships that are officially limited to Caucasian men are not needed and would be socially unacceptable, but how (if at all) is that regulated?

Are there laws that prevent scholarships or other financial assistance programs from being offered only to white men but which allow it for other groups? If so, what kind of language is used in this regulation (for instance, if a law allows offering assistance on the basis of race or sex using the term “minorities”, we were wondering if the interpretation of that bill would change if the sex ratio were to change within the country or a field of study, etc)?

1 Answer 1


In general, the US government (federal, state, or local) may not provide disparate treatment of people based on race or sex. There are very limited circumstances in which a government program may be race- or sex-aware. As the New York Times said in the story "A Covid-19 Relief Fund Was Only for Black Residents. Then Came the Lawsuits.":

Supreme Court rulings have established that race-based policies are constitutional only if they achieve a compelling governmental interest and are narrowly tailored to do so. The court has most notably allowed race to be used as a factor in college admissions to achieve student diversity. But the court in recent decades has also sided against one of the original rationales for affirmative action policies — to undo past discrimination and its lingering effect.

“You have to show that there’s this really close nexus between why you’re using race and the outcome you’re seeking,” said Melissa Murray, a professor of law at New York University. “And I think here it’s going to be a real question as to whether funding just Black businesses through this Cares fund is actually the only way that you could address the problems that Black Oregonians have experienced during this particular period.”

The scholarships linked to in the question seem to be privately funded. Private individuals may create scholarships restricted by race, sex, or other criteria that the US government may not use.

Government programs may be limited by race when the program is narrowly tailored to improve diversity in an institution that has been and remains less diverse than the population, in some cases.

The recent AP story "Court rules against using race, sex to allocate federal aid" said:

The U.S. 6th Circuit Appeals Court issued a 2-1 opinion Thursday that said the government cannot allocate limited coronavirus relief funds based on race and sex. It issued an order for the government to stop using the criteria when processing an application from Antonio Vitolo, an East Tennessee restaurant owner.

In some cases covid relief has been targeted at geographic areas which have been harder hit by the pandemic than the average. In many cases such areas have significant minority populations, but were selected based on economic, not racial, data.

A recent Executive Oder by President Biden says:

in order to address the disproportionate and severe impact of coronavirus disease 2019 (COVID-19) on communities of color and other underserved populations, ...

... It is impossible to change the course of the pandemic without tackling it in the hardest-hit communities. In order to identify and eliminate health and social inequities resulting in disproportionately higher rates of exposure, illness, and death, I am directing a Government-wide effort to address health equity.

various agencies are directed to take account of:

... disproportionately high rates of COVID-19 infection, hospitalization, and mortality in certain communities and disparities in COVID-19 outcomes by race, ethnicity, and other factors, to the extent permitted by law; ...

This should not authorize a simple races-based allocation.

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