Already, the Veterans Administration has adopted explicit preferences of this sort. In a Dec. 10 document, it announced that it would prioritize Black, Hispanic, Native American and Asian veterans in vaccine distribution because these communities “have been disproportionately affected by COVID-19.”
This runs into the Fourteenth Amendment to the Constitution, which says citizens of all races are entitled to the equal protection of the laws. The Supreme Court has long interpreted this to mean that the government may ordinarily not dole out valuable benefits, or impose harms, based on a citizen’s race.
Courts thus apply “strict scrutiny” to any race‐conscious law or policy, requiring proponents to show that it fulfills a “compelling purpose” for the government and is “narrowly tailored” to achieve that purpose, tests that this policy would be unlikely to pass.
There are a few major exceptions but they do not apply here. Compensatory preference is OK when there has been recent, systemic discrimination against a minority group by the same level of government that wants to adopt the preference. (Inequality by itself, even when traceable to society‐wide discrimination, isn’t good reason.)