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Pittsburgh’s canceled guaranteed income program was vulnerable to claims of racial discrimination

Mayor Ed Gainey formally accepted his transition team's recommendations on Thursday at the City-County building.
Oliver Morrison
WESA 90.5
Mayor Ed Gainey formally accepted his transition team's recommendations at the City-County building May 12. Racial and economic equity rank among his top policy priorities.

Pittsburgh Mayor Ed Gainey’s administration cited unspecified legal concerns when it announced in April that it had killed a plan to give 200 low-income households an extra $500 in monthly cash assistance for two years. City officials said the guaranteed income pilot program would have been ineligible for needed federal funding but never gave specifics.

In the preceding months, however, the initiative drew scrutiny from a conservative advocacy group based in Texas. The American Civil Rights Project said the pilot amounted to unconstitutional discrimination because it required half of the monthly payments to go to households led by Black women.

“The [Pittsburgh] City Council authorized financing this race-and-sex-discriminating hand-out using federal funds provided by the U.S. Department of the Treasury through the American Rescue Plan Act of 2021. That element of the program was clearly illegal,” the ACR Project said in a statement earlier this month.

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The group’s executive director, Dan Morenoff, said he filed right-to-know requests with the city’s law department this past winter to gather more details on how the city would implement the guaranteed income program. City councilors had approved the plan in September, when Bill Peduto was still mayor. He had championed the idea as a tool for fighting poverty in Pittsburgh.

“When we saw that there was a policy that appeared to have been adopted, choosing beneficiaries … largely on the basis of their race and sex, to the degree that they were affirmatively excluding others from participation on the basis of their race and sex, that drew our further attention,” Morenoff said.

He said Pittsburgh officials informed him in March that none of the documentation he had requested about the program existed. So he said he told them he would continue to ask for the information.

Around the same time, his organization submitted a complaint with the U.S. Treasury over a basic minimum income plan in Evanston, Ill., alleging that it illegally prioritized undocumented immigrants for assistance.

Gainey’s press secretary, Maria Montaño, declined to weigh in last week on the ACR Project’s objections to Pittsburgh’s program. But the mayor’s decision to scrap the initiative also followed federal court rulings last summer that blocked the Biden Administration from targeting COVID-19 relief to Black farmers and minority-owned restaurants.

Blind to reality

Constitutional law experts agree the city’s plan to designate half of the spots in the guaranteed income program for Black women was similarly vulnerable to a legal challenge.

A federal civil rights statute bars discrimination on the basis of race, color, or national origin in any program or activity that receives federal funds. But while Pittsburgh city councilors had planned to use $2.5 million in American Rescue Plan money to finance the income guarantee, University of Pittsburgh law professor Jules Lobel said the program’s design also violated the Fourteenth Amendment’s promise of equal legal protections.

“The Supreme Court has held that any affirmative action program, which explicitly distinguishes based on race, needs to meet a very strict standard. And it can only be justified by either [promoting] diversity in higher education or by overcoming prior state discrimination,” Lobel said.

“Neither of those [circumstances] apply here,” he said of Pittsburgh’s canceled program. “It's clearly unconstitutional as a quota for African-American women.”

Duquesne University law professor Bruce Ledewitz noted that courts have allowed governments to use affirmative action when it’s proven the governments themselves have illegally discriminated in a specific context. For example, in 1980, the Pennsylvania Supreme Court permitted Pittsburgh’s Civil Service Commission to order that half of newly hired city firefighters be Black. A federal court had found six years earlier that the Pittsburgh Fire Bureau had intentionally discriminated against Black job candidates for decades.

But with today’s now-terminated guaranteed income plan, Ledewitz said, “Pittsburgh [was] trying to remedy what is called societal discrimination or structural racial discrimination. And the U.S. Supreme Court has made it very clear that that's just not constitutional. … Government is only allowed to remedy its own discrimination: It cannot remedy society's discrimination."

While he agrees with that analysis, Lobel said the justices should loosen restrictions on initiatives that seek to undo systemic racial disparities.

“The court has been treating all kinds of distinctions — whether or not they're designed to aid African-Americans in overcoming prior social discrimination and economic discrimination, or whether they're designed to hurt African-Americans in maintaining the traditional racist perspective of America — equally. And I think that's a mistake,” Lobel said.

“I think that's blinding oneself to the reality of the purpose of the 14th Amendment, which was not to ensure that whites weren't discriminated against, but it was to ensure that African-Americans weren't discriminated against.”

On notice

While Lobel's view gained popularity in the wake of the police killing of George Floyd two years ago, the American Civil Rights Project opposes such thinking.

The group formed in December 2020, but Morenoff said its concerns predate the wave of Black Lives Matter protests just months earlier.

“The movement towards more and more identity politics, infecting additional areas of American life, required new and additional actors to take up the torch and fight for American equality. So we were discussing the need for this project before those events unfolded,” he said.

While he did not disclose how the nonprofit is funded, he noted that he previously led an organization that unsuccessfully challenged county voting districts in Dallas as diluting the rights of white voters. He also serves as a contributor to the Federalist Society, which has been instrumental in appointing conservative judges to the federal bench.

With the ACR project, Morenoff said he has turned his focus to race-based programs such as Pittsburgh’s guaranteed income pilot. And he noted, “There are a host of [other] organizations [nationally] that are standing for equality in front of the law.”

“As these programs are proliferating at all levels, I would expect that challenges to them will also multiply,” he said. “Frankly, [we are] one of the groups bringing those claims. And if there are people in Pittsburgh who are troubled by their government engaging in race-based policymaking, I hope they'll reach out to us because it would certainly be helpful to have someone as a client in this city who was willing to make that stand.”

Looking for a new path

But Gainey was elected last year after vigorously campaigning to improve living conditions for people of color. And when he abandoned the guaranteed income plan last month, Montaño, his spokesperson, pledged that city leaders would continue to prioritize the issue.

"We are focused on actionable and sustainable solutions that address the systemic issues impacting the lives and well-being of Black women in our city," she said at the time. "We are currently working to convene a meeting with Black women leaders from all across the city to talk about our path forward."

The administration appears to be aware of the legal constraints it faces in charting that path. In a briefing during Gainey’s transition into office, a consulting firm suggested that the city’s Office of Equity consider conducting a formal study to determine how to implement “constitutionally sound policies and programs that will yield the equitable outcomes that this administration hopes to achieve.”

Lobel, the University of Pittsburgh law professor, advised officials to refashion the guaranteed income pilot to target low-income residents broadly.

“It is going to be a significant percentage of poor women who are African-American,” he said. “If you focus more broadly on [economic factors], that would make the program clearly constitutional. And I think [it] might garner broader support among the population as a whole.”

But Ledewitz, of Duquesne University, noted that the constitutionality of such gender-based approaches remains ambiguous under court precedent.

The mayor’s office hasn’t said how it might replace the guaranteed income pilot. And it still hasn't shared the legal reasoning behind its decision to halt the program. Montaño said the administration will keep its lawyer’s opinion confidential under attorney-client privilege. But Ledewitz called that explanation “absurd.”

“The client, in this case, the city of Pittsburgh … is always permitted to disclose legal advice,” he said. “And in this case, we have a right to demand it because allegedly you have been violating the Constitution in our name. We have a right to know what you were told about that.”

Ledewitz noted the attorneys’ conclusion could have implications for other race-based assistance programs that are pervasive nationally. Government contracting rules often give preference to women and minority-owned businesses, for example. And just two months ago, Pittsburgh’s Urban Redevelopment Authority launched an initiative that proposed to reserve funding, including American Rescue Plan dollars, to invest in women and minority-owned businesses.

“It's a certain amount of inertia that allows these things to go forward now,” Ledewitz said. “They're normally not challenged, and that's the reason that they are present.”