Something strange is going on out in Marin County, California. The elected officials there have instituted a pilot program offering a universal basic income in the form of a monthly stipend to a limited number of participants. That in and of itself isn’t unique, as programs such as this have been tested in other places, such as Stockton, California. A couple of aspects of this program, however, really are unique. The most glaring among these is the fact that in order to qualify, participants have to be women. No males need apply. On top of that, the program is not available to white women, but only to women of color. We’ll get to the other, legally problematic aspect of the program in a moment. Liberty Unyielding has most of the details.

In California, local governments are administering welfare programs that exclude whites and men. At least one of these programs violates the Constitution by discriminating based on race and gender, at taxpayer expense…

Local governments can’t use tax dollars to finance racially-discriminatory programs by private entities, under Supreme Court decisions like Norwood v. Harrison (1973). Racial discrimination against whites is generally unconstitutional under the Supreme Court’s decision in Richmond v. J.A. Croson Co. (1989).

The Marin program doesn’t just racially discriminate against whites — it totally excludes them. Complete exclusion of whites is generally unconstitutional even when a mild preference for minorities is permitted, such as in an affirmative-action program designed to remedy governmental discrimination against a minority group.

As the linked report explains, both of the controversial aspects of this program are legally and constitutionally problematic. That’s because the county is using taxpayer dollars for the UBI payments, though they are being supplemented with private donations. There are certain circumstances where perceived minorities who have demonstrably suffered discrimination in recent history can be favored when the government hands out money and other benefits, but the total exclusion of an entire class, be it by race, gender, religion or any other favored class has never been approved.

That distinction sets this program apart from previous ones such as the UBI payments enacted in Stockton, California by Mayor Michael Tubbs. That program also placed restrictions on recipients based on legally dubious distinctions, but the program was entirely funded through charitable contributions from private organizations. But even then, there are legal questions that have yet to be answered. Even if the money for the payments originated from private sources, once it passes through the municipal government’s coffers on its way out the door, is the city still obligated to handle it the same way that it does all other taxpayer-generated revenue? We still don’t know the answer to that one.

Also, an analysis of the Stockton program after it was completed produced results that made its efficacy seem dubious at best. These UBI funds are notoriously hard to track, particularly when they are disbursed in the form of gift cards or debit cards that can be used at ATMs for cash withdrawals.

Marin County isn’t the only location in California where this is taking place. Oakland has a similar program running where $500 monthly checks are being sent out to families, provided they are not white. That one, however, is privately funded, so the same questions remain that are now being examined in Stockton apply. Still, there are other issues that must be addressed, preferably by the courts. When the government says that the program is only open to “non-white” families, exactly how “non-white” do you have to be? Would biracial couples and their children be eligible? What if one parent had a white grandparent and they were the modern, inverse equivalent of people referred to as “Octoroons” in the antebellum south? Would they be “too white” to qualify?

It’s difficult to imagine how the courts would give a thumbs up to these restrictions if they are seriously challenged. The problem is going to be finding someone with the proper standing to bring the challenge forward.