The program violates the Equal Protection Clause of the Fourteenth Amendment because:
Remedying societal discrimination is not a compelling governmental interest. Richmond v. J.A. Croson Co., 488 U.S. 469, 505 (1989); see also Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 307 ((1978) (opinion of Powell, J.) (describing “societal discrimination” as “an amorphous concept of injury that may be ageless in its reach into the past.”) Remedying discrimination from 55 to 105 years ago or remedying discrimination experienced at any time by an individual’s parents, grandparents, or great grandparents has not been recognized as a compelling governmental interest…
Defendant also has not and cannot demonstrate that its use of a race as an eligibility requirement is narrowly tailored. Among other shortcomings, Defendant’s use of race as a proxy for experiencing discrimination between 1919 and 1969 does not limit eligibility to persons who actually experienced discrimination during that relevant time period and therefore is overinclusive. Defendant also failed to consider race-neutral alternatives, such as requiring prospective recipients show that they or their parents, grandparents, or great grandparents actually experienced housing discrimination during the relevant time period because of an Evanston ordinance, policy, or procedure, as Defendant requires for the third group of prospective recipients. Nor did Defendant take into account race-neutral anti-discrimination remedies before adopting its race-based eligibility requirement.