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Racial Preferences and Higher Education

Here are some thoughts on recent news stories related to race and higher education. 

First, as we await the Supreme Court’s decision in Schuette v. BAMN, consider how that case might fit in with the latest news from California on SCA 5.  That is, in the Schuette case, it is being argued that a Michigan ballot initiative banning, among other things, racial preferences in university admissions ought to be struck down as antiminority.  And yet, in California, the SCA 5 legislative effort to repeal the ban there on racial preferences in university admissions was withdrawn because of pressure from a racial minority, namely Asians. 

The takeaway, of course, is that racial preferences are (increasingly) unworkable and untenable in a society that is (increasingly) multiracial and multiethnic.  And we have learned that, gee, maybe banning racial preferences and discrimination is not so “antiminority” after all.

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Second, Inside Higher Ed reports that the U.S. Education Department’s Office for Civil Rights is investigating whether Florida’s Bright Futures scholarship program illegally discriminates against black and Latino students.  The item follows a news story in The Miami Herald; the state scholarship program is based in part on SAT or ACT scores, state lawmakers recently raised those score requirements, and, while OCR officials declined to discuss specifics, they did say that the agency is “investigating allegations that the state of Florida utilizes criteria for determining eligibility for college scholarships that have the effect of discriminating against Latino and African-American students on the basis of national origin and race.” 

But wouldn’t a decision to rely less on standardized test scores likewise “have the effect of discriminating against” those groups that do well on these tests?  The takeaway here, of course, is that the “disparate impact” approach to civil-rights enforcement leads to nonsensical results.

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Then there’s a big pull-quote in this recent Chronicle of Higher Education article on disease and genetic research:  “One thing we can’t do is use race as a proxy.”  Unless, of course, one is a university admissions official.
Seriously, this is perhaps the most common error in the Left’s defense of racial preferences in university admissions, namely that if some desired criterion is thought to have a racial correlation, then it must be okay to use race as the way one selects for it.   Thus, if a disproportionate number of black people are poor, then this justifies giving black people an admissions preference — even if most of the black people admitted are not poor (86 percent at the more selective schools studied in the propreference bible, The Shape of the River), and even if plenty of poor whites and Asian Americans end up being discriminated against. 

Race as a proxy is “profiling” or “stereotyping” or bad science in other contexts, but fine in admissions.

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And from an Inside Higher Ed article this week on a lawsuit alleging racial discrimination by Miami University:

“Marvin Thrash brought the suit after he was rejected for tenure. He had joined the public university in Ohio as an ‘opportunity hire’ after he was a finalist, but not selected, for an open tenure-track position in paper science and engineering. He argued that his record was devalued because of bias against those hired with affirmative action.”

Well, yes, it’s quite plausible that, if you are hired according to lower standards, some people will devalue your record.  That’s just another one of the many costs of racial preferences.

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This is an area, as our supporters know, of great interest to the Center for Equal Opportunity, and we spend plenty of time talking with journalists about it.  We were recently quoted by this San Francisco Chronicle columnist, and you can listen to a recent interview here, on Chinese-language television no less (at about the 13:30–14:50 minute mark).

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Finally, here’s a wide-ranging and thoughtful piece by Center for Equal Opportunity board member Abigail Thernstrom on the Supreme Court’s decision in Fisher v. University of Texas and the recent grassroots revolt against racial preferences among Asian Americans in California.

California Keeps Its Ban on Racial Preferences

“California voters will not be asked this year to decide whether to roll back California's ban on racial preferences in college admissions, Assembly Speaker John A. Perez,” announced this week, according to the Sacramento Bee.  The story notes, “The move came a week after three Asian-American state senators -- who had previously supported putting the question to voters -- asked Perez to put a stop the measure ….”

That’s great news, and here’s hoping the withdrawal is permanent.  The fact that what doomed the measure was opposition from Asian Americans is important, too, with a caveat.  An important problem with racial and ethnic preferences is that they are more and more unwieldy in a country that is more and more multiracial and multiethnic. And it’s good that Asian Americans were aggressive here in opposing the measure.

But such preferences would be objectionable no matter who the victims of the discrimination would be:  whether “only” whites are discriminated against, or whether in some contexts (e.g., contracting) some Asian Americans (e.g., the Japanese but not the Turks — see next item below in this email) might be given a preference, or whatever.   And then there’s the fact that, given the “mismatch” problem, even those groups given a preference (typically blacks and Latinos) are hurt.

No, it’s just “a sordid business, this divvying us up by race,” as Chief Justice Roberts wrote some years ago.  And it shouldn’t really matter whose ox is being gored.

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Indianapolis Recorder columnist Amos Brown is incensed at an outrageous perversion of law and justice right there in his fair city. The whole column is here, but this will give you the gist:

A front page story . . . reports the machinations and political logrolling by Ersal Ozdemir, a politically connected businessman, who’s used his connections to garner millions in tax benefits and subsidies for a variety of projects throughout Indianapolis. . . .

But what makes the deals of Ozdemir and his main business Keystone Construction of great interest to our African-American community is that his business has been certified as a minority-owned business by both the City of Indianapolis and the State of Indiana.

Just one problem – Ozdemir isn’t a minority, based upon the commonly accepted definitions of minority-owned businesses (MBE).

Ozdemir is a native of Mersin, Turkey, a town on the Mediterrean [sic] Sea. . . .Under existing laws, individuals from Turkey aren’t considered one of the minority groups — Black/African-American, Asian, Hispanic, and American Indian, defined by the feds, state and city. . . .

Ozdemir appealed saying that because Turkey is located both in Europe and Asia; he should be considered “Asian” and thus a minority. According to geography, Ozdemir’s homeowtown [sic] is in the part of Turkey that’s in Asia. But, according to geography, so are nations close by, including Cyprus, Iraq, Lebanon and Israel.

But, the federal government strongly disagrees. The feds say persons from Odzemir’s native land are considered as whites: “A person having origins in any of the original peoples of Europe, the Middle East, or North Africa.” . . .

Several sources who have years of experience working with minority-owned business issues, told me they were puzzled as to why the city classified Ozdemir and Keystone as an “Asian” minority-owned business. They can’t remember any instance where a businessperson from Turkey or neighboring nations in what’s described as the Asia Minor Region have been classified as an MBE.

The National Minority Development Supplier Council, which works with minority-owned businesses, doesn’t recognize businesses owned by individuals of Turkish origin. . . .

Worse, classifying Keystone Construction as an Asian-owned business is a slap in the face to the many legitimate businesses owned by true Asian residents of Indianapolis. . . .

Ozdemir is a smart, cunning businessman. He didn’t need to bend and break the MBE rules in order to succeed. The fact that he did and that the administrations of former [Indiana] Gov. Mitch Daniels and [Indianapolis] Mayor Ballard perverted the rules to let him do so, demonstrates that we may have reached a point, unfortunately, where the MBE programs in Indiana and Indianapolis may have become corrupt and worthless!

Well, at least Mr. Brown reaches the correct bottom line: These programs are indeed corrupt and worthless.  What difference does it make what kind of an Asian someone is, or whether he is an Asian at all, when the city awards contracts?

It’s not easy figuring out who comes out looking the worst and silliest here:  the Turk (for turning himself into an ethnic pretzel), the city and state officials (for running a program that encourages such gyrations), the federal government (ditto), or Amos Brown (for his indignant insistence that only the “right” ethnic groups are entitled to this particular piece of the public pie).  By the way, I wonder if Mr. Ozdemir claims to be Asian when his children apply to college?  Not if he’s really “cunning,” he won’t!

Finally, one reader asked me why Mr. Ozdemir can’t argue that Turks add just as much “diversity” to the city’s contracting as other Asians.  The answer is that the legal rationale, such as it is, for contracting racial preferences is “remedial,” as opposed to the “diversity” rationale used in racially preferential university admissions.  So the question isn’t whether Mr. Ozdemir will add diversity; the question is whether his Turkish brethren have suffered oppression in Indiana, to the same extent that “true Asian residents of Indianapolis” have.  As I indicated, each layer of this onion is sillier than the last.

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The latest edition of Education Week published my response to a recent plea it had run titled “Why We Need More Black Men in Teaching.”  Here’s what I said:

It should be borne in mind that Title VII of the 1964 Civil Rights Act makes it illegal to weigh race in employment decisions, and this includes hiring teachers. What's more, for public employment, the U.S. Constitution likewise makes it presumptively illegal to make decisions on the basis of race.

The federal courts have never recognized a "diversity" exception for Title VII. In addition, in 1986, the U.S. Supreme Court explicitly rejected the "role model" justification in the employment context for teachers, in Wygant v. Jackson Board of Education.

A decade before that, in Hazelwood School District v. United States, the court had similarly noted that a school district could not point to the racial makeup of its student body as a justification for the racial makeup of its faculty. This is not only the law. It also makes perfect sense.

As Justice Lewis Powell wrote in Wygant, "Carried to its logical extreme, the idea that black students are better off with black teachers could lead to the very system the court rejected in Brown v. Board of Education."

There is no reason why students cannot have as role models people who do not share their skin color.

Schools should, in any event, hire the best-qualified individuals, regardless of race or ethnicity. Anything less is a disservice to the students and the community, besides being unfair to the applicants.

Later in the week, the Center for Equal Opportunity incorporated this response into a memorandum we sent to a town that had announced new “affirmative action” efforts in, among other things, its hiring of public schoolteachers.  We warned them that
[T]here are lawful and unlawful ways to pursue “affirmative action.”

Certainly it is a good thing to take aggressive steps to ensure that no one is being discriminated against and that the best possible candidates for positions are encouraged to apply, without regard to race, ethnicity, or sex.  But, by the same token, the law forbids anyone getting a preference in hiring on the basis of race, ethnicity, or sex.  The best qualified individuals should be recruited and hired.

For example, public schoolteachers were discussed in the [city’s announcement].  In this regard, the [response] that appears in the current issue of Education Week should be of interest to you, and is appended to the end of this email.

BAMN! The Center for Equal Opportunity Zaps Racial Preferences

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. 

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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.

Unhappy Silver Anniversary: Good Decision, Bad Loophole

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.

Act Now To End Racial Preferences

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.

The Center for Equal Opportunity Drafts Two Model Bills

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:

  1. 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;
  2. how group membership is considered, including the weight given to such consideration and whether targets, goals, or quotas are used;
  3. 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);
  4. what consideration has been given to nonpreference alternatives as a means for achieving the same goals for which group membership is considered;
  5. how frequently the need to consider group membership is reassessed and how that reassessment is conducted;
  6. 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
  7. 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.

Two Wins for CEO in the Supreme Court!

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.

Read more...

Illegal Labor Department Affirmative-Action Regulations

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.

Consensus on Race in the High Court

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.

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