Those attracted to the Progressive Casualty Insurance Company because of its admittedly funny commercials should think twice about buying their car insurance from the company, which apparently thinks racial discrimination is progressive. And the refusal of two judges on the Sixth Circuit Court of Appeals, Andre Mathis (a Joe Biden appointee) and David McKeague (a George W. Bush appointee), to stop the company’s blatantly racist misbehavior in Roberts v. Progressive Preferred Insurance Company is a stunning failure of judicial officers to carry out their duty to enforce the law.
But before getting into the facts of how Progressive discriminated against Nathan Roberts, consider another Supreme Court case relevant to what happened to him.
In 1972, Sandra McCrary called a private school in northern Virginia to inquire whether the school was integrated. Mrs. McCrary, who was black, wanted her son Michael to attend, but was told by a staff member who answered the phone that the school did not admit black students. Because of the school’s explicitly racist admissions policy, she never submitted an application for Michael to attend there.
It is obvious that Michael McCrary was a victim of racial discrimination. It was certainly obvious to the Supreme Court, which held in Runyon v. McCrary (1976), that federal law prohibited the racist admissions policies that kept Michael out of the school. However, if you asked Sixth Circuit Judges Mathis and McKeague if Sandra and Michael McCrary were harmed by racial discrimination and had standing to sue the school, their answer would be “No.”
On February 24, the Sixth Circuit issued its opinion in Roberts. See if the facts of the case sound familiar: Nathan Roberts, the owner of a small truck-dispatch company, considered sending an application to a grant program that Progressive runs. But he learned that only black-owned companies could receive the grants. Because Mr. Roberts is white, he decided not to apply.
If you think Roberts’ situation sounds exactly like McCrary’s in 1972, you’re not alone. Circuit Judge Danny Boggs (a Reagan appointee) wrote in his dissent that the facts in the two cases were “materially identical.” But the Sixth Circuit decided that, unlike Mrs. McCrary, Mr. Roberts wasn’t harmed by Progressive’s discriminatory policy. Why? Because he didn’t apply for a grant he knew he wouldn’t receive.
The majority opinion held that even though Roberts’ application could never have been successful, he made the choice not to submit an application. Since he didn’t give Progressive the opportunity to keep their promise to discriminate against him, his decision not to apply meant the harm he suffered was “self-inflicted.”
Consider the kinds of outrageous results this logic would have had in the McCrary case. A black family submits an application to a racist school that is denied? Harmed by discrimination. Mrs. McCrary, who chose to take the school at its word and not apply? Harmed, but only by her own choices. The claim that a person who has already been told they’re ineligible because of their race then needs to make sure that they will, in fact, be discriminated against, amounts to an insistence that they add insult to injury or risk having no recourse for either.
The Supreme Court was right in 1976, and the Sixth Circuit panel is wrong on practically the exact same facts, fifty years later. The illogic that the majority uses to support its argument gives courts an excuse to punish people for making the eminently reasonable decision not to ask a company that has said it will racially discriminate against them to follow through.
As Judge Boggs says in his eminently well-reasoned dissent, “This is an extraordinary case in which the court dismissed straightforward allegations of racial discrimination against white and Asian applicants because the plaintiff refused to ‘subject[] himself to the alleged[] discrimination[].’” In fact, in Boggs’s view, this was an easy case. Progressive “operated a racially discriminatory grant program that excluded otherwise eligible white and Asian applicants solely because of race.” This program was obviously “unlawful under Titles VI and VII of the Civil Right Act and 42 U.S.C. §1981,” said Boggs.
After this lawsuit was filed and the Supreme Court issued its 2023 decision in Students for Fair Admissions, Inc. v. Harvard, stopping racist college admissions, Progressive ended its racist grant program. But these two judges are denying Nathan Roberts and his company, Freedom Truck Dispatch, compensation for the damages he suffered due to the racial discrimination practiced by this “progressive” insurance company. And I certainly wouldn’t buy insurance from a company that believed engaging in racism was good policy and only ended it to avoid litigation.
Our judicial system didn’t tell Sandra McCrary that she had no standing to contest the segregationist admissions policy of the school she wanted her son to attend. And it shouldn’t tell Nathan Roberts that he’s responsible for his inability to participate in Progressive’s blatantly discriminatory grant program.
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