Race Discrimination by Any Other Name Is Still Race Discrimination

Published September 30, 2021

National Review Online

On Tuesday, I, along with Michael Buschbacher of Boyden Gray & Associates filed a race-discrimination complaint with the Office for Civil Rights at the U.S. Department of Health and Human Services (HHS) over New Hampshire’s illegal racial set-asides in the state’s COVID-vaccine program.

The facts are simple. On April 2, 2021, a white male New Hampshire resident who has diabetes and is thus at elevated medical risk to COVID-19 called the Public Health Council of the Upper Valley in Lebanon, N.H., to schedule a COVID-19 vaccination. He was told appointments were “fully subscribed for people of color.” In short, he was denied a vaccine solely because of his race and had to go elsewhere to get the shot at a later date.

When life-saving medicines are in short supply and in high demand, they should go to those who are most likely to benefit. For this reason, it made sense when New Hampshire early on limited vaccines to people who were over 50 because of their clear medical risks. The state, however, included a woke exception to this scheme. Residents of a certain skin color or national origin could cut to the front of the line, no matter how young, healthy, or wealthy, no questions asked. New Hampshire set aside 10 percent of COVID-19 vaccines for “racial and ethnic minority groups,” which meant “all persons except white, non-Hispanic.” As part of the state’s “equity allocation,” the Public Health Council of the Upper Valley held “BIPOC clinics” for residents who identify as “Black, Indigenous or people of color” and only such residents. All spots being reserved for “people of color” meant none for people like the complainant, who happen to be white, and despite any elevated risk for COVID-19 complications.

In response to the complaint, the governor’s office provided a statement: “New Hampshire has been one of the most successful states in the nation at vaccine roll-out, and early on in the crisis was the fastest state in the nation for getting shots in arms quickly. NH opened the vaccine to everyone on April 2, before nearly every other state. Everyone who wanted a vaccine could have gotten a vaccine, and this complaint is going nowhere.”

Note the failure to address the elephant in the room. The statement obfuscates by focusing on April 2, the date the state allegedly opened up vaccinations for all. Conspicuously missing is any mention about the racial set-asides the state undeniably operated on before April 2. If the state had truly opened up its program to all residents on April 2, why was a clinic still denying patients, including the complainant, based on skin color on that date? It is no answer to say that the complainant could have theoretically gotten a shot somewhere else. Under that logic, New Hampshire can have a “non-whites only” DMV office and that would be ok because white residents could wait in line to get a license elsewhere. This is not a close question.

As a condition of receipt of federal funds, states (and others) are prohibited from discriminating on the basis of race, color, and national origin under Section 1557 of the Affordable Care Act and Title VI of the Civil Rights Act of 1964. New Hampshire received from HHS over half a billion dollars in federal COVID-relief funds, which included $43 million for its vaccination efforts. The state’s official COVID-resource website even links to HHS’s March 2020 Bulletin which states that civil-rights laws are not suspended during the pandemic and that “our civil rights laws protect the equal dignity of every human life.”

As HHS’s website explains: “Programs that receive Federal funds cannot distinguish among individuals on the basis of race, color or national origin, either directly or indirectly, in the types, quantity, quality or timeliness of program services, aids or benefits that they provide or the manner in which they provide them. This prohibition applies to intentional discrimination as well as to procedures, criteria, or methods of administration that appear neutral but have a discriminatory effect on individuals because of their race, color, or national origin.”

It doesn’t get much clearer than that. New Hampshire used race to determine who received COVID-19 vaccinations in its federally funded state vaccine program. The state blatantly denied white persons, such as the complainant, vital health treatments in the middle of a pandemic solely because of his race, color, and national origin. HHS must investigate and hold New Hampshire accountable to make sure such a thing never happens again.

Despite what some attempt to claim these days, race discrimination, even for the purpose of “equity,” is still race discrimination — and illegal.

Rachel N. Morrison is an attorney and policy analyst at the Ethics and Public Policy Center, where she works on EPPC’s HHS Accountability Project. She is a former attorney adviser at the Equal Employment Opportunity Commission.

Rachel N. Morrison is a Fellow at the Ethics and Public Policy Center, where she directs EPPC’s HHS Accountability Project. An attorney, her legal and policy work focuses on religious liberty, health care rights of conscience, the right to life, nondiscrimination, and civil rights.

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