The State of Vermont recently drew criticism for giving racial minorities priority in access to the COVID vaccine. Lawyers and law professors (including me) said that racial preference was unconstitutional. But at least Vermont didn't waste doses of the vaccine.
The state of Virginia did. It kept at least 11,000 doses of the COVID vaccine unused due to its extreme push for racial "equity." That will result in increased transmission of COVID-19 among Virginians of all races, notes James Bacon, the former publisher of Virginia Business.
In Danville, Va., so few local residents were getting shots from a COVID-vaccination clinic that people, mostly white, were driving in from out of town to avoid the long waits elsewhere. Danville is over 51% black; Virginia as a whole is only 20% black. The administration of progressive Gov. Ralph Northam became concerned about the “equity” implications of so many more white people getting vaccinated than blacks. So the Northam administration restricted access for out-of-town walk-ins. Only people separately scheduled through a state registration system would be allowed.
That largely shut down vaccinations in Danville. Danville’s vaccination clinic had the capacity to administer up to 3,000 vaccinations per day. But in early April, it was averaging only 184 shots per day, according to an article in the Danville Register & Bee. So the Northam administration's way of promoting “equity” in vaccinations was to prevent white people from getting them, even if that did not result in more vaccinations of black people.
As Bacon notes, "the clinic gave only 736 shots" over "four days when it could have given about 12,000. So, for the sake of 'equity,' roughly 11,000 people who could have been partially or fully immunized from COVID-19 were not," in just that short period.
The Danville vaccination center was set up for the explicit purpose of serving rural black populations in Danville and surrounding Pittsylvania County. The region had been targeted by a Virginia equity analysis that identified cities with high COVID-19 rates. Preference was given to local residents, with out-of-town visitors only able to fill empty slots in the vaccination process. So the "mostly white college students flocking in from other cities did not displace anyone," Bacon notes. "They just weren’t the demographic Team Northam had in mind."
Bacon says this anti-white policy backfired and will actually harm blacks, as well as whites:
Not only were the restrictions racist in motivation, they were pure folly. When you vaccinate someone — of whatever race or ethnicity — you not only protect that individual but you build toward herd immunity. Approaching herd immunity slows the spread of the virus throughout the community, giving a measure of protection to everyone…of whatever race or ethnicity.
If Team Northam wants to rectify “inequities” in dispensing of the vaccine, it needs to do a better job of reaching out to minority communities by addressing the apprehensions that are keeping people away. As it stands now, Team Northam’s idea of “equity” looks like reverse racism: better to have no one getting shots than the “wrong” people getting shots.
Ironically, the very perverseness of this "equity" policy makes it less likely that anyone will challenge it in court. A straightforward preference for blacks would be unconstitutional, because the Supreme Court has ruled that blacks can't be given racial preferences despite the "societal discrimination" they historically suffered in Virginia. Such preferences are considered racial discrimination in violation of the Constitution's equal protection clause. (See Richmond v. J.A. Croson Co. (1989)).
But Virginia made it harder for everyone from out-of-town -- white or black -- to get the vaccine. Because of that, it might claim that it is not racially discriminating in access to the vaccine (even though most of the people blocked from getting the vaccine were white).
But it is a veiled form of racial discrimination. Courts sometimes treat excluding out-of-towners as racially discriminatory when the purpose is to exclude people mostly of one race. For example, the Supreme Court ruled that redrawing a city’s boundaries to exclude as many black people as possible was racially discriminatory in Gomillion v. Lightfoot (1960). Similarly, a court ruled that putting public housing in particular geographic areas discriminated against whites, in Walker v. City of Mesquite (1999).
Hans Bader practices law in Washington, D.C. After studying economics and history at the University of Virginia and law at Harvard, he practiced civil-rights, international-trade, and constitutional law. He also once worked in the Education Department.