Congratulations to the New Haven firefighters!

First, congratulations to the New Haven firefighters and their legal team! Last week the city of New Haven agreed—finally—to pay $2 million and enhanced pension benefits to the firefighters in their celebrated case that went all the way to the Supreme Court a couple of years ago. The 20 firefighters (19 white and one Latino) sued after the city threw out the results of a civil service examination for promotions because it didn’t like the racial results.

The Center for Equal Opportunity played an important role in all this, filing an amicus brief in the Supreme Court urging the Justices to take the case and then a second brief once review was granted. We helped advise the attorneys and prepare them for the oral argument, and wrote and spoke extensively about the case in the media. And when CEO chairman Linda Chavez testified against the confirmation of Sonia Sotomayor to the Supreme Court, she emphasized then-Judge Sotomayor’s wrongheaded vote against the firefighters when the case was before her on its way to the High Court.

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We were recently intrigued by a news story  in The Daily Pennsylvanian about a “Faculty Diversity Action Plan” at the University of Pennsylvania. We got a copy of the plan and winced—since it seemed oblivious to the fact that there is controlling legal authority in Pennsylvania explicitly rejecting the “diversity” rationale for employment racial preferences. So we sent this memorandum:

July 29, 2011

To:       Office of the General Counsel, University of Pennsylvania
From:   Roger Clegg, President and General Counsel, Center for Equal Opportunity
Re:       Title VII Issues with “Penn’s Action Plan for Faculty Diversity and Excellence”

We are writing to make an obvious point:  There are potential problems under Title VII of the 1964 Civil Rights Act, 42 U.S.C. 2000e et seq., raised by “Penn’s Action Plan for Faculty Diversity and Excellence” , especially in light of the Third Circuit’s en banc decision in the Piscataway case.

In short: It is Title VII, not Title VI, that is the relevant statute with respect to faculty employment, and there is no “diversity” exception to its general prohibition on discrimination based on race, ethnicity, or sex—again, especially in light of the Piscataway decision, which rejected such an exception.  We won’t belabor the point in this email, but we have written a number of articles on this issue and politically correct faculty discrimination generally over the years:

We urge your office to urge the University as a matter of law and policy not to use skin color, national origin, and gender as proxies for background, experiences, and viewpoints—that is, not to discriminate on the basis of the former attributes as a way of achieving diversity in the latter.  Likewise, there is much in the Action Plan that can be done in a nondiscriminatory fashion that benefits all faculty members and applicants, like improved “mentoring” and “expanding the pipeline” and “family-friendly policies”—and, most obviously and importantly, ensuring that faculty members and applicants are not treated differently (some better, some worse) on the basis of race, ethnicity, or sex (whether they are male or female, white or black, Asian or Latino, American Indian or Arab American).

Many thanks in advance for your attention to our concerns, and we respectfully hope that, as the University’s counsel, you will alert them to the issues discussed here.

We received a quick and pretty positive response from the University’s General Counsel, so here’s hoping our memo did and does some good.

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Finally, I’ll be traveling to New Orleans this week to speak to the Federalist Society lawyers chapter there on “Affirmative Action in the Obama Era.” The event will be noon Thursday at The Palace Café, Fleur de Lis Room, on 605 Canal Street, so if you’re in town I’d love to see you.

The latest item in the Obama administration’s dubious track record, by the way, is a settlement it announced this week here , in which—rather like the New Haven case, come to think of it—the use of a promotion exam was challenged because of the “disparate impact” it had. That is, the Justice Department didn’t like the fact that “too many” people of some skin colors did well on the test and “not enough” people of other skin colors. "