When my wife and I opened Jake’s Bar and Grill three years ago in small-town Harriman, Tennessee, we had no idea we would face discrimination from the federal government, let alone sue the government and receive an injunction in our favor. But on May 27, a 2-1 ruling from the 6th Circuit Court of Appeals granted us a preliminary injunction halting a federal program that used people’s race and sex to determine their eligibility for $29 billion in COVID-19 relief for restaurants.
My name is Antonio Vitolo. My wife Danielle and I operate our restaurant full time as our main means of income. Our sales were great in January and February of 2020, but by the end of March we saw a significant decline due to COVID-19 lockdowns.
In April, we went from making about $50,000 per month in sales to a little over $9,000. We were forced to do carry-out only and, since we are in a very rural area, we only had enough business to justify being open on the weekends.
When the Biden administration promised the American Rescue Plan Act’s Restaurant Revitalization Fund would provide financial aid to restaurants through the Small Business Administration (SBA), we were relieved. I registered for an account the Friday before the application portal opened. On Monday, May 3, I was sitting at my computer within an hour of the portal’s opening to complete the application.
I answered the questions honestly, including the ones asking about race and sex. After I applied, I received an email saying I would not be considered for funding for at least 21 days, while other “priority” applicants — women and minorities — were considered.
As a Hispanic woman, my wife fits both of those categories. But because we each own 50 percent of the venture, and I am a white man, we were sent to the back of the application line. We also heard the SBA would likely run out of funds by the time we could be considered.
We could not believe it. Here we were, a once successful and booming restaurant, knocked down by government lockdowns and looking for any help to get back on our feet. Yet we were denied priority, not because other restaurants had greater needs, but because of my sex and race. This is not what America is about.
Vitolo and his wife, Danielle.
On May 12, with the help of the Wisconsin Institute for Law and Liberty, we sued the federal government — specifically SBA Administrator Isabella Guzman. We sought an immediate injunction to stop the distribution of the relief until the legality of the program’s sex and race preferences could be judged.
At first, we were denied a motion for an injunction in the Eastern District of Tennessee, so we brought an emergency appeal to the 6th Circuit Court of Appeals.
Circuit Judge Amul Thapar, who ruled in my favor along with Senior Circuit Judge Alan Norris on May 27, wrote: “When the government promulgates race-based policies, it must operate with a scalpel.” Because the government didn’t cite specific instances of anti-minority discrimination to justify corrective preferential treatment, he argued, this was too general and would be “presumptively invalid.”
The following day, the SBA changed how it distributes funds. Following the lawsuit, the SBA initially implemented a first-come, first-served rule, but because so many priority applicants had jumped the line, they are now exclusively reviewing non-priority applicants. We consider this a huge victory.
U.S. Supreme Court Justice Clarence Thomas said it best in his 2003 dissent in Grutter v. Bollinger: “Racial discrimination is not a permissible solution … [and it] can only weaken the principle of equality embodied in the Declaration of Independence and the Equal Protection Clause.” Using racial discrimination, even to supposedly “rectify” past racial discrimination by other people, is still discrimination.
While I am saddened to see racial disparities and division intentionally stoked by the Biden administration and the left, I am still hopeful. There is still hope for our Constitution, there is still hope for the Bill of Rights, and there is still hope for the America so many men and women have died protecting.
One day my business may not be here anymore, but the United States of America will be. The most important thing to consider is the country and the world we leave to our children. Will it be one centered on principles that discriminate between people based on their race, sex, or any other accidental factor? Not if I can help it.
