- Published Date
- Written by Roger Clegg
In case you missed it, I coauthored an op-ed this week in The Wall Street Journal on the unhappy 25th anniversary this month of a loophole left in an otherwise good Supreme Court decision, striking down racial and ethnic preferences in government contracting. Here it is:
In a landmark case 25 years ago this month, the Supreme Court struck down a municipal contracting program that gave preferential treatment to companies owned by racial and ethnic minorities. City of Richmond v. J.A. Croson Co. was a welcome decision for equality under the law—but Justice Sandra Day O'Connor's 1989 opinion unfortunately left the door ajar for state and local governments to justify such discrimination.
Six years later, in Adarand Constructors Inc. v. Pena, Justice O'Connor ruled against the federal government with regard to a preferential federal contracting program but again left the door ajar for the federal government. She did the same thing—that is, limiting but not ending racial preferences—for university admissions in 2003 (Grutter v. Bollinger).
The problem with this line of Supreme Court decisions is that many politicians find a racial spoils system advantageous—and if the door is left even slightly ajar they will muscle through it. And so, while race-based preferential contracting programs remain legally vulnerable when they are challenged, these programs continue. There are more than 1,400 preferential programs for government contracts in the Transportation Department alone. The overall number throughout the federal, state and local governments would no doubt total several thousand.
Republican Sen. Mitch McConnell gamely but unsuccessfully tried to cut back preferential federal contracting programs in the late 1990s, particularly for federal highways. More recently, in 2011-12, then-Sen. Jim Webb (a Democrat) fought against them, also largely in vain.
Courts have struck down some state and local programs—in cities (Baltimore, Chicago, Columbus, Jackson and Philadelphia), school districts (Atlanta and Memphis), counties (Cook County, Ill., Dade County, Fla., and Fulton County, Ga.), and states (Ohio and New Jersey). They also have struck down or limited the use of some preferential contract programs at the federal level. And if the violation of civil-rights laws is clear enough, courts in a few cases have held officials personally liable if they continue to enact them.
But with a single sentence in Croson, Justice O'Connor created a loophole and launched a new industry: "Where there is a significant statistical disparity between the number of qualified minority contractors willing and able to perform a particular service and the number of such contractors actually engaged by the locality or the locality's prime contractors, an inference of discriminatory exclusion could arise."
It did not take governments long to seize upon this language. By the early 1990s this newspaper headlined a story "Court Ruling Makes Discrimination Studies a Hot New Industry." It reported that Miami had commissioned an accounting firm to undertake a disparity study to justify its set-aside program. When the firm concluded that the needed statistical evidence of discrimination was lacking, "angry city commissioners refused to accept the conclusion." The vice mayor "railed at the stunned consultants: 'The whole purpose of this study was for you to prove that there was a disparity.'
"In the past quarter century more than $100 million of taxpayers' money has paid for more than 200 disparity studies, according to research conducted by John Sullivan and a colleague in the years since Croson. These disparity studies may well represent the biggest expenditure of social science research in this country's history.
It is mostly money wasted. It is a huge leap from a statistical disparity, which can have all kinds of explanations, to a conclusion of discrimination. And it is a further leap to concluding preferences are the right—and the Supreme Court rulings indicate that they must be the only—remedy for any discrimination that does occur.
The Government Accountability Office reviewed 14 disparity studies in June 2001 and found their methodological flaws "create uncertainties about the studies' findings." The United States Commission on Civil Rights in May 2006 issued a report criticizing disparity studies for, among other things, using obsolete or incomplete data; failing to test for nondiscriminatory explanations for differences; and relying on anecdotal information that had not been collected scientifically or verified. Last year, Leila Atassi of the Cleveland Plain Dealer revealed—to the city's great consternation—that Cleveland had spent $758,000 on a no-bid contract for a disparity study that was largely a cut-and-paste job from other studies.
Preferential contracting programs do not just discriminate against whites. Thus, the Hispanic Chamber of Commerce challenged a Milwaukee preferential contracting program. The case was settled in the chamber's favor last year, ending the program.
Government contracting programs should be open to all, with the opportunity to bid widely publicized, and no one should be discriminated against on the basis of skin color, national origin or sex. Such discrimination is unfair and divisive, breeds corruption, and costs the taxpayers and businesses money to award a contract to someone other than the lowest qualified bidder.
The low-bid process in government contracting can be made transparent at every step, and this transparency should make it relatively easy to detect and correct any discrimination. This is an area where, as Chief Justice John Roberts famously wrote in another context, "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."
More courts need to say so in no uncertain terms. And politicians—starting with Congress—need to recognize this truth and put an end to these programs.
- Published Date
- Written by CEO Staff
FIRST MODEL BILL (antidiscrimination based on California’s Proposition 209)
CIVIL RIGHTS ACT OF 2014
(a) The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.
(b) This section shall apply only to action taken after the section's effective date.
(c) Nothing in this section shall be interpreted as prohibiting bona fide qualifications based on sex which are reasonably necessary to the normal operation of public employment, public education, or public contracting.
(d) Nothing in this section shall be interpreted as invalidating any court order or consent decree which is in force as of the effective date of this section.
(e) Nothing in this section shall be interpreted as prohibiting action which must be taken to establish or maintain eligibility for any federal program, where ineligibility would result in a loss of federal funds to the state.
(f) For the purposes of this section, “state” shall include, but not necessarily be limited to, the state itself, any city, county, city and county, public university system, including any state university or college, community college district, school district, special district, or any other political subdivision or governmental instrumentality of or within the state.
(g) The remedies available for violations of this section shall be the same, regardless of the injured party’s race, sex, color, ethnicity, or national origin, as are otherwise available for violations of then-existing state antidiscrimination law.
(h) This section shall be self-executing. If any part or parts of this section are found to be in conflict with federal law or the United State Constitution, the section shall be implemented to the maximum extent that federal law and the United States Constitution permit. Any provision held invalid shall be severable from the remaining portions of this section.
SECOND MODEL BILL (requiring disclosure of preferential policies)
SUNSHINE CIVIL-RIGHTS ACT OF 2014
Findings: Citizens and taxpayers of the State of ____________ have a right to know whether its public institutions of higher education are treating student applications differently depending on the students’ race, color, ethnicity, or national origin, and, if so, the way in which these factors are weighed and the consequences to the students themselves of doing so. Moreover, the United States Supreme Court has recently set out limitations on such considerations of race, color, ethnicity, and national origin, and it is part of the oversight duty of the State Legislature to ensure that those limitations are being observed and the State is not exposed to expensive litigation.
Section 1. Every academic year, each public institution of higher education shall provide to the State Legislature a report regarding its student admissions process, and this report shall be made publicly available.
Section 2. This report shall begin with a statement of whether race, color, ethnicity, or national origin is considered in the student admissions process (if different departments within the institution have separate admission processes and consider race, color, ethnicity, and national origin differently, then the report shall provide the information required by this report for each department separately).
Section 3. If race, color, ethnicity, or national origin is considered in the student admission process, then the public institution of higher education shall also provide the following information:
- the groups for which membership is considered a plus factor or a minus factor and, in addition, how membership in a group is determined for individual students;
- how group membership is considered, including the weight given to such consideration and whether targets, goals, or quotas are used;
- why group membership is considered (including the determination of the critical-mass level and relationship to the particular institution’s educational mission with respect to the diversity rationale);
- what consideration has been given to nonpreference alternatives as a means for achieving the same goals for which group membership is considered;
- how frequently the need to consider group membership is reassessed and how that reassessment is conducted;
- factors other than race, color, ethnicity, or national origin that are collected in the admissions process. Where those factors include grades or class rank in high school, scores on standardized tests (including the ACT and SAT), legacy status, sex, state residency, or other quantifiable criteria, then all raw admissions data for applicants regarding these factors, along with the applicants’ race, color, ethnicity, and national origin and the admissions decision made by the school regarding that applicant, shall accompany the report in computer-readable form, with the name of individual students redacted but with appropriate links, so that it is possible for the Legislature or other interested persons to determine through statistical analysis the weight being given to race, color, ethnicity, and national origin relative to other factors; and
- analysis—and also the underlying data needed to perform an analysis—of whether there is a correlation (i) between membership in a group favored on account of race, color, ethnicity, or national origin and the likelihood of enrollment in a remediation program, relative to membership in other groups; (ii) between such membership and graduation rates, relative to membership in other groups; and (iii) between such membership and the likelihood of defaulting on education loans, relative to membership in other groups.
Section 4. Nothing in this act shall be construed to allow or permit preference or discrimination on the basis of race, color, ethnicity, or national origin.
- Published Date
- Written by Roger Clegg
Last week the Supreme Court handed down decisions in Fisher v. University of Texas and Shelby County v. Holder. The Center for Equal Opportunity helped write and file briefs in both cases, and in both cases the Court’s rulings vindicated our arguments, as discussed below.
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Lawyers on both sides of Fisher v. University of Texas at Austin are claiming victory, and there’s some logic to that: The big winners are lawyers generally. The takeaway from the Supreme Court’s ruling last week is that universities using racial preferences can expect more and tougher—stricter—scrutiny, to be hauled into court more frequently, and to have a harder time prevailing when they are.
- Published Date
- Written by Roger Clegg
The federal government’s attempt to coerce private and public employers into ignoring the criminal records of prospective employees is not faring well. Greg Abbott, Texas’s state attorney general, has filed an excellent complaint, challenging the U.S. Equal Employment Opportunity Commission’s “enforcement guidance” that tries to limit employers’ use of criminal-background checks in hiring. And in EEOC v. Freeman recently, a federal district court threw out the government’s own lawsuit, noting that the “careful and appropriate use of criminal history information is an important, and in many cases essential, part of the employment process of employers throughout the United States” — and that the government’s case here was riddled with legal and factual holes.
None of that will end of the matter, of course, and you can count on the EEOC pressing ahead in other cases. But what’s even more remarkable is that, at the same time the federal government is using “disparate impact” arguments to discourage companies from using selection criteria that actually have nothing to do with race, other federal regulations explicitly pressure them to consider race, ethnicity, and sex in making hiring and promotion decisions.
Those are the regulations that implement Executive Order 11,246, through which the Department of Labor requires companies that contract to do work for the federal government to have “affirmative action” plans that include “goals and timetables” when the “incumbent” percentage of “minorities or women” is less than “their availability percentage.”
It is wrong as a matter of law and policy for DOL’s Office of Federal Contracting Compliance Programs to require covered federal contractors to set goals and timetables whenever they have a certain degree of “underrepresentation” among minorities and women. The regulations’ present approach is at odds with the current case law. It is quite clear that this use of classifications based on race, ethnicity, and sex will trigger judicial strict scrutiny; that mere statistical disparities are not sufficient to justify the use of racial classifications; and that, even if they were, there is no justification for goals and timetables to be triggered when women and minorities are “underrepresented” but not when men and non-minorities are.
In Adarand Constructors, Inc. v. Peña, the Supreme Court ruled in 1995 that “all racial classifications, imposed by whatever federal, state, or local governmental actor, must be analyzed by a reviewing court under strict scrutiny.” The U.S. Court of Appeals for the D.C. Circuit elaborated three years later: “We do not think it matters whether a government hiring program imposes hard quotas, soft quotas, or goals. . . . Strict scrutiny applies.”
The courts have allowed the use of racial considerations in employment when they are needed to remedy some entity’s past discrimination, but there is no plausible remedial basis for the government’s approach here.
The federal government, after all, has no recent history of systemic discrimination and has banned discrimination by its contractors since at least 1961, and the private sector as a whole has been prohibited from engaging in such discrimination since the passage of the Civil Rights Act of 1964. And even if there were a remedial basis, the across‐the‐board approach taken by the regulations is not narrowly tailored. Statistical disparities can result from reasons that are not related to discrimination, and they can almost always be addressed through race‐ and gender-neutral means if they are.
The regulations are in fact also at odds with Title VII of the 1964 Civil Rights Act. Under this statute, too, before prohibited classifications can be used a remedial predicate must be met, showing a “manifest imbalance” in a “traditionally segregated” position, as the Supreme Court ruled in its Weber and Johnson decisions years ago. One hopes that 49 years after the 1964 Act made other employment discrimination illegal there is not much “traditional segregation” left.
The Court’s 2009 decision in Ricci v. DeStefano — the New Haven firefighters case — further suggests that an employer’s track record of discrimination against, say, blacks must be so bad and so recent that if it did not consider race, there is a “strong basis in evidence” that it could be successfully sued for that failure. That’s a very high bar. If, per Ricci, an employer cannot legally consider race unless there is a strong basis in evidence that it would otherwise lose a Title VII lawsuit, why should it be able to consider race when it is not motivated by fear of a Title VII lawsuit at all?
What’s more, Weber and Johnson also held that considerations of race, ethnicity, and sex cannot “unnecessarily trammel” the interests of other employees — and, in 2013, there will never be a situation where the “necessary” way to fight discrimination is through considering race rather than simply taking steps to ensure that it isn’t considered.
Indeed, the current regulations are not only illegal, but as a practical matter result in more, not less, discrimination. The regulations inevitably pressure companies to “get their numbers right” by using surreptitious quotas and other hiring and promotion preferences based on race, ethnicity, and sex. This has been widely remarked upon and is generally accepted — and is the reason that pro‐preference groups are so enamored of the current approach.
The Center for Equal Opportunity’s experience in dealing with companies also leaves no doubt about it: Companies we have asked to make a commitment to rejecting preferences regularly cite the regulations as a constraint in this regard. Obviously, the intent and result of the regulations are to push companies to keep an eye on skin color, national origin, and sex in making employment decisions. Even if this were legally defensible, it is bad policy because it is unfair and divisive, and it discourages employers from hiring and promoting simply on the basis of merit.
- Published Date
- Written by Linda Chavez
The Supreme Court waited until its last week in session to hand down three of its most controversial decisions: two involving race and a third involving gay marriage. While the court delivered closely split decisions on two of the cases, what was perhaps most surprising was the near unanimity in a case involving affirmative action at The University of Texas.
Unlike the ideological divide that continues over the issue of gay marriage and whether the most punitive provisions of the Voting Rights Act remain necessary nearly a half-century after the law was initially enacted, the justices' decision in Fisher v. University of Texas suggests they share the public's general suspicion of race-based preferences in college admissions.
- Published Date
- Written by Roger Clegg
Last week, the U.S. Supreme Court heard oral argument in Schuette v. BAMN, a case in which a federal appellate court held — astonishingly — that Michigan voters somehow violated the U.S. Constitution’s Equal Protection Clause by endorsing equal treatment for everyone regardless of race or sex.
At issue is Proposal 2 (the Michigan Civil Rights Initiative), a 2006 ballot measure that amended the state constitution to provide that state and local government agencies (including public universities) “shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.”
Compare Michigan’s mandate for colorblind equal rights to the Equal Protection Clause, which provides that “No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.”
To suggest that the two are in conflict — as the U.S. Court of Appeals for the Sixth Circuit did — is mind-boggling. Proposal 2 is not only quite consistent with the Equal Protection Clause, it is really nothing more than an elaboration on it.
So the Supreme Court should uphold Proposal 2. Indeed, the courts should feel some responsibility to avoid an outcome in which, perversely, it is impossible to stop the government and government institutions from engaging in discrimination and preferential treatment. The judiciary is a repeat offender in thwarting the popular will in this area as expressed in both constitutional and statutory law, and so the Court should feel obliged to keep this mess from getting any worse than it already is.
In fact, the Court should take this opportunity to make some amends to those who have been fighting for the principle of colorblind law but have been thwarted by bad judicial decisions. It can do so by reaffirming the strong presumption against any government use of racial and ethnic preferences — not only in education, but also in contracting and employment, the two other arenas in which they are commonly found, and which are also addressed by Proposal 2.
The lower-court decision here complained that Proposal 2 makes it harder for some groups to lobby for preferential treatment. But the Equal Protection Clause is in the Constitution precisely because racial preference is not to be left to everyday politics, academic or otherwise. The United States has seen institutionalized discrimination in favor of whites be replaced with institutionalized discrimination against whites (and Asians) in less than a generation, and racial spoils will always be attractive to many politicians and other state and local actors.
University officials in particular are extremely stubborn here, and so the people have to step in to get the racial politics out. Studies by the Center for Equal Opportunity showed that the use of racial preferences got worse during the period between the Supreme Court’s ruling striking down the University of Michigan’s use of racial preferences in undergraduate admissions in 2003 and the passage of Proposal 2 in 2006.
Furthermore, what the people of Michigan did in banning politically incorrect and politically correct preferences simply vindicates what federal law is all about. The people of the United States guaranteed “the equal protection of the laws” for all Americans with the passage of the Fourteenth Amendment, and there is no phony-baloney “diversity” exception to it. Congress explicitly forbade any recipient of federal money (which includes all public universities) or public employer from engaging in any racial or ethnic discrimination with the passage of the 1964 Civil Rights Act, again with no judge-made exceptions. And Congress also banned such discrimination with the various enactments of 42 U.S.C. § 1981.
The existence of these laws should come as no surprise, since poll after poll has shown that racial preferences are unpopular, and are becoming more and more so. And note, too, the hypocrisy of the Left, which has often argued that the issue of racial preferences should be left to the political branches — but also argues that laws banning such preferences should be ignored and is now arguing that the people should not be allowed to act, period.
There are other problems with the Sixth Circuit’s decision, too. It is not at all clear that Proposal 2 hurts African Americans (especially in light of the mismatch problem it removes — that is, the fact that admitting students with significantly lower qualifications simply sets them up for failure since they are more likely to flunk out, drop out, get poor grades, and switch majors); and it clearly helps other minorities, like Asians, who typically are at the short end of preferences. And the logic of the Sixth Circuit’s decision would also make it illegal to ban discrimination and preferential treatment through simple legislation, which would call into question a colorblind law like the 1964 Civil Rights Act, as well as state-constitutional civil-service rules.
The voters in Michigan were entirely correct in banning government discrimination on the basis of skin color or what country someone’s ancestors came from. Recent Census data show America is more and more a multiracial and multiethnic country. In such a country, it is simply untenable for the government to classify and sort people on the basis of skin color and national origin, and to treat its citizens differently — some better, some worse — depending on which silly little box is checked.
A racial spoils system will always tempt public officials, especially in government contracting, employment, and education — precisely the areas addressed by Proposal 2. The Court has an opportunity to rule decisively against racial spoils and in favor of racial nondiscrimination.
* * *
The above is an essay I wrote for National Review Online last week, and the Center tor Equal Opportunity has been very involved with the BAMN case for some time now. Along with our friends at Pacific Legal Foundation, we had asked the en banc Sixth Circuit to take the case (successfully) and to reach the right decision (unsuccessfully, by an 8-7 party-line vote), then had urged the Supreme Court to take the case (successfully), and — when the Court did so — we helped write and joined a fourth amicus brief that we submitted to the justices.
The Center for Equal Opportunity helped coordinate other amicus briefs filed in the case, and I also participated in a moot court the week before oral argument, preparing Michigan’s solicitor general for the case. Finally, I critiqued for National Review Online a New York Times editorial on the case that was published just prior to argument; and I participated in a debate just after the case was argued, sponsored by the National Constitution Center, which you can listen to here.
- Published Date
- Written by Roger Clegg
There’s an excellent discussion here of “Originalism and the Colorblind Constitution,” by Professor Michael Rappaport. The bottom line (quoting the abstract): “In addition to arguing that the evidence for the constitutionality of affirmative action under the 14th Amendment’s original meaning is weak, the Article also contends that there is relatively substantial originalist evidence in favor of the colorblind Constitution.” I came to a similar conclusion here.
- Published Date
- Written by Linda Chavez
Like a bad penny, cases involving race keep turning up before the Supreme Court, largely because the court won't definitively make up its mind how much racial discrimination it favors. Since 1978, when the court decided race could be a factor in college admissions as long as it promoted greater racial diversity, racial preferences have become ingrained in society, from college admissions to hiring decisions and promotions to government contracting.
But racial preferences still grate against a sense of right and wrong for most people, which is why cases continue to work their way back up before the court. In July, the court punted on the issue in a challenge to Texas' college admissions policy by sending the case back to the lower court. This week, the court heard arguments on whether Michigan voters violated the U.S. Constitution by forbidding state colleges from using race as a factor in deciding which students to admit.
In a ballot referendum in 2006 known as Proposal 2, 58 percent of voters approved an amendment to Michigan's constitution banning consideration of race in college admissions, state employment and government contracting. At the time of its adoption, black and Latino students received substantial preference in admission to the state's most competitive campuses. According to studies by my Center for Equal Opportunity, black applicants with the same test scores as white or Asian students were as much as 70 times more likely to be admitted to the University of Michigan at Ann Arbor as undergraduates and 36 times more likely to be admitted to the law school prior to adoption of Proposal 2.
Ironically, the whole reason the initiative came to be on the ballot was because in 2003, the Supreme Court upheld preferential admissions at the University of Michigan Law School, while striking down the university's undergraduate affirmative action plan as too rigid. The only alternative left to those who opposed the school's preferential policies was to amend the state constitution. Now, having lost at the ballot box, proponents of preferential admissions are back at the Supreme Court.
Court watchers predict that, once again, the court may find a way to duck the big issue. Given the court's composition, it is unlikely that opponents of Proposal 2 will see it struck down on constitutional grounds. But the court could do what it did with the Texas case: decide it on the narrowest legal grounds, which would leave the ban against racial preferences in Michigan in place but would not settle the larger question of why government should ever be permitted to use race in discriminating against or granting preference to anyone.
Judging people by the color of their skin is never benign. It is never a good thing to say that race defines the person, for better or worse. When government allots benefits to some based on race, it necessarily means that government discriminates against others who don't share those racial characteristics. It was wrong when government behaved in this fashion for more than 200 years to favor whites. And it is no less wrong when government does it today to disadvantage whites -- and, importantly, Asians, who faced discrimination under the old system and still face it in most affirmative action plans.
In those states that have banned racial preferences, black and Latino students are doing just fine. In fact, in California, which banned preferences in 1996, not only have the numbers of black and Latino students attending the prestigious UC system increased, but they are graduating at rates 20 to 25 percent higher and have better grades than they did prior to the ban.
We are supposed to have progressed to the point that skin color doesn't matter. Wasn't that the whole point of the civil rights movement of the 1950s and '60s? So why is it that we still allow life-altering decisions to be made on the basis of race?
Unless the court decides the Michigan case broadly and decisively -- upholding the state ban on preferences and deciding that government should never use race to pick winners and losers -- this issue will continue to divide America. The time to end racial discrimination is long overdue. The court must act now.
- Published Date
- Written by Roger Clegg
The New York Times must really be afraid that the Supreme Court is about to do the right thing in Fisher v. University of Texas, in which the use of racial preferences in university admissions is challenged. It ran an op-ed two Sundays ago that discusses the pending decision and acknowledges that, despite schools’ claims that race is considered as just one among many factors, it is in fact given huge weight today. This is despite warnings from the Court already (in 1978 and 2003) that the heavy and mechanical use of race is unacceptable.