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In 2021, the Biden administration created a loan forgiveness program that excluded white farmers, on the argument that Black people had suffered historical damages. It was ruled unconstitutional and a violation of equal protection. (Wynn v. Vilsack et al)

In 2023, Evanston, IL created a mortgage assistance program that excluded white, Asian, Hispanic, and other homeowners on the argument on the argument that Black homeowners had suffered historical damages. Notably, the program excludes not just Asian and Hispanic homeowners, but also LGBTQIA2S+, Catholic, Muslim, and many other people who were excluded based on the same housing policies.

What is the difference?

I'm only looking for a comparison of the laws. This is not a duplicate of a straightforward analysis because I'm not looking for a full constitutional analysis, only an explanation of difference.

Helpful information: full text of decision. I anticipated that the wording would include all racial groups that suffered discrimination, but I was surprised that the racial test is "having origins in any of the Black racial and ethnic groups of Africa". (Page 2, "Participant Eligibility")

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  • Wynn v. Vilsack is still pending. The judge has not ruled that the program was unconstitutional. "What is the difference?": Perhaps the only significant difference is that nobody has yet sued Evanston.
    – phoog
    Commented Jul 21, 2023 at 23:50

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The situations cannot reasonably be compared legally. In Wynn v. Vilsack, a motion for preliminary injunction was granted (and the program was not ruled unconstitutional). In the ruling, the court found that the evidence "does not support a finding that USDA continues to be a participant, passive or active, in discrimination", and does find that there were past successful remediation efforts, thus "the Court expresses serious concerns over whether the Government will be able to establish a strong basis in evidence warranting the implementation of Section 1005's race-based remedial action", moreover "Plaintiff has convincingly shown that the relief provided by Section 1005 is not narrowly tailored to serve that interest". The court finds that there is a good-enough case that the law fails strict scrutiny. Incidentally, Congress repealed that law.

On the other hand, in Evanston, we have no facts or concrete legal allegations (e.g. drafts of a legal complaint). The cited memorandum is a recommendation, not a law. There does exist at least one available council action from 2019 which says that

The Chief Financial Officer is hereby authorized to divert all adult use cannabis funds received by the Illinois Department of Revenue for sales of adult use cannabis to a separate fund in a City account for local reparations. SECTION 3: The City may receive donations to this fund from separate organizations, corporations, and individuals established herein by the City Council.

The city also has a page referring to Ordinance 102-O-20 (not available) indicating that "The Committee will work with residents, City staff and experts to explore and identify programs and opportunities to be supported by the Reparations Fund". The Program Guidelines §3 indicates that a person may be eligible for money if they are an ancestor, direct descendant, or "other" who has suffered from a "City ordinance, policy, or procedure that served to discriminate against the Applicant in the area of housing". It thus does not exclude Asian and Hispanic homeowners, LGBTQIA2S+, Catholic, Muslims or anyone else, except insofar as a Catholic was not demonstrably the victim of such discrimination. The city also provides an extensive historical study of past government discrimination in housing. You may be able to eke out more concrete information on what they have done here, at the reparations committee website.

In terms of potential differentia between the USDA program and the Evanston program, the most obvious difference would be in terms of prior remediation efforts. If you sue Evanston for their program, they could defend the program as providing the remediation that justifies the program – which had already been provided in the USDA program.

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