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Fisher Fissures

Last week, the New York Times’s Linda Greenhouse predictably praised the recent court of appeals decision upholding the University of Texas’s use of racial and ethnic preferences in admissions.  The Washington Post has now followed suit.  But as I noted in response to both: 

“The court’s analytical framework is obviously wrong: The purported educational benefits of adding racial preferences … were not demonstrated, and there was no discussion at all of the costs of such discrimination. The alleged benefits are dubious and trivial, while the costs are many, heavy, and undeniable. To give just one example of the latter: Despite all the attention lately that has been given to the well-documented problem of mismatching students and schools — setting the ‘beneficiaries’ of racial preferences up for failure — there is not a word about it in the court’s opinion.”

I also cannot let pass Ms. Greenhouse’s casual and false reference in her piece to “the world of higher education, where race is commonly — even if marginally — a factor in the overall admissions picture.” Commonly, yes — but not marginally. As studies from conservative — including, most prominently, the Center for Equal Opportunity — centrist, and liberal scholars have all confirmed, race is weighed very heavily indeed in university admissions.  

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Despite Ms. Greenhouse et al., however, those of us who oppose racial preferences in university admissions have gained some unlikely allies of late.

Here are two thematically similar pieces, both worth a read:  first, from that very same New York Times, “If Affirmative Action Is Doomed, What Next?” by David Leonhardt; and, second, from the equally left-of-center Chronicle of Higher Education, “What Sotomayor Gets Wrong about Affirmative Action” by Richard D. Kahlenberg.  Both talk about income/locale-based alternatives to racial preferences in university admissions, since both believe that such preferences are dying, and both discuss two new books on the alternatives, Place Not Race by Sheryll Cashin and The Future of Affirmative Action by Anthony Carnevale, Stephen J. Rose, and Jeff Strohl.

The Chronicle of Higher Education also recently published its annual “Special Report:  Diversity in Academe,” and  at least three pieces offered more or less direct support for getting rid of racial and ethnic preferences (of course, probably they all provide indirect support for it, one way or another).  There’s an excerpt from Sheryll Cashin’s above-mentioned new book, Place Not Race, which argues that preferences should be based on socioeconomic status rather than skin color. There is also a Latina student who doesn’t like being labeled “underprivileged” just because of her ethnicity.

And there is an article by a mixed-white-and-Asian academic who has decided he will now check the “white” box instead of the “Asian” box, because Asians in his department are no longer considered “underrepresented” and are, in fact, probably now considered to have met their quota. Now, this professor is, I suspect, not yet at the point where he will be tithing to the Center for Equal Opportunity, but the realization that some nonwhites are getting discriminated against in the name of “diversity” has certainly got him thinking.  (Silliest line in his piece:  “A white colleague remarked that no one seems to complain that we have too many white faculty members when we add to their numbers.”  Uh huh.)

One other thing:  As I’ve often noted, just because it is, alas, legal to use racial and ethnic preferences in choosing students does not mean it is legal to use racial and ethnic preferences in selecting faculty. The fact is, the applicable statutes are different, and the federal courts have never recognized (and some have rejected) the notion of a “diversity” defense for employment discrimination.

Here’s another unlikely ally:  Janet Napolitano, now head of the University of California system, is not happy with the constraints — set out by the voters of California, an approach recently upheld by the Supreme Court in Schuette v. BAMN — she must face in discriminating among student applicants on the basis of their skin color and what country their ancestors came from. Her Washington Post op-ed recently is illogical and dishonest in predictable ways — mischaracterizing the state’s ban on racial preferences; ignoring the costs of such discrimination and overstating the benefits; etc. — but she grudgingly admits that the “educational benefits” of “diversity” can be achieved without racial discrimination. So her complaining actually amounts to an admission that other schools in other states are required to forego racial and ethnic discrimination, too — since the Supreme Court’s Fisher decision last summer made clear that they can engage in such discrimination only if there is no alternative way to achieve diversity. So, Janet, even if you’re not happy, we’re happy that you wrote!

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Here’s some more antipreference ammunition, and again it’s not from where you might expect it:  “For the first time, the number of Latinos from California offered freshman admission to the University of California was larger than that for whites,” reports the Los Angeles Times, in a recent article about the latest University of California admissions figures.  But they aren’t 1-2, they are 2-3, because Asian Americans remain number one.  While some might see a historical sense in which favoring blacks over whites might be justified, what happens when most of the preferences are going to Latinos over Asians, as is increasingly the case?  Well, as always, the future is now in California — or would be if racial preferences were allowed there. 

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But let’s end with something from a more consistent ally.

Justice Scalia began his concurring opinion in Schuette v. BAMN this spring by writing that, in that case, “we confront a frighteningly bizarre question: Does the Equal Protection Clause of the Fourteenth Amendment forbid what its text plainly requires?” And he’s right that the Fourteenth Amendment and the Michigan ballot initiative at issue in Schuette each bars racial and ethnic discrimination in university admissions.

But the juxtaposition is even more “frighteningly bizarre” when we place side-by-side the text of the Michigan Civil Rights Initiative (which covers public university admissions, among other things) and Title VI of the federal 1964 Civil Rights Act (which covers public university admissions, among other things).

Here’s the language of the MCRI:  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.” And here’s the language of Title VI of the 1964 CRA: “No person in the United States shall, on the ground of race, color, or national origin, be … be subjected to discrimination” by a public university.

Putting sex aside, which is admittedly odd in the university context, to say that the two prohibitions are not identical requires one to argue that you can give a “preference” to some racial/ethnic groups without “discriminating” against the other racial/ethnic groups. Well, that’s silly, although of course there is no doubt that the Left would so argue if this were all there was between it and preserving racial discrimination, I mean preference.

The reason that courts apply the Equal Protection Clause rather than Title VI these days, by the way, is that a majority of the justices held in Bakke that the two are coextensive and that the former contains some wiggle room that the plain text of the latter does not. Too bad.

There Is No “Resegregation”

Last Saturday was the 60th anniversary of Brown v. Board of Education, and that prompted many on the Left to claim that any celebration should be tempered by a recognition that “segregation” and/or “resegregation” continues.  Below is an op-ed I wrote for USA Today that explains why these claims are specious.  Center for Equal Opportunity board member Abigail Thernstrom and her husband Stephan likewise set the record straight in their excellent Wall Street Journal op-ed here.

On May 17, we will celebrate the 60th anniversary of the Supreme Court's landmark decision in Brown v. Board of Education. And that is certainly something worth celebrating.

The only fly in the ointment is that this event will also prompt many solemn pronouncements that, alas, our schools are just as segregated as ever and/or that they are resegregating. We will be told that therefore the promise of Brown remains unfulfilled, and that this is the reason for continuing racial disparities in education.

But this is not true.

Here’s the key statistic that must always be borne in mind: The number of segregated (or resegregated) public schools in the United States in 2014 is ... zero.

Segregation means sending children to separate schools because of their race; it does not mean a failure to have socially engineered racial balance. So we can celebrate, unreservedly, the fact that we no longer have racial segregation in our public schools.

It is true that there are educational disparities across racial and ethnic lines, but racial imbalances in classrooms have little if anything to do with this. It is not necessary for there to be a certain number of white children in a classroom in order for black children to learn.

As Justice Clarence Thomas once wrote, "It never ceases to amaze me that courts are so willing to assume that anything that is predominately black must be inferior." Some intellectuals and academics, unfortunately, are even quicker than the courts to jump to this conclusion.

Indeed and ironically, the real reasons for existing racial disparities are generally left unaddressed by the same well-meaning people who complain about "resegregation."

When you think about it, a child's environment has three major components — parents, schools and peers — and in all three respects African American children, in particular, face more hurdles. That is, they are more likely to grow up in single-parent homes, go to a substandard school and have peers who are, to put it mildly, unsupportive of academic achievement.

It may be politically incorrect, but we must acknowledge that out-of-wedlock births are a bad thing and that anti-"acting white" peer pressure exists. And while liberal groups will admit that substandard schools are a problem, they will also resist (partly because of recalcitrant teacher unions) the most promising reforms — involving competition among schools, merit pay for teachers and more choice for parents and children — in favor of just throwing more money at the problem. But lack of money is not the problem, any more than lack of racial balance is.

The only way to achieve the politically correct balance that some misguidedly demand is not by ignoring students' skin color, but by using it to sort, assign and bus them. This is flatly at odds with Brown, which prohibited race-based assignments of students.

And it's not even true that there is a declining lack of racial balance. Sometimes an "Index of Exposure" has been used to bolster that claim, but this is a flawed measure, as explained by Abigail and Stephan Thernstrom in their 2003 classic No Excuses: Closing the Racial Gap in Learning. The Thernstroms conclude that "minority students are not becoming more racially isolated; white students typically attend schools that are much more racially and ethnically diverse than 30 years ago, and the modest decline in the exposure of black and Hispanic children to whites is solely due to the declining share of white children in the school age population."

There is also good reason to be skeptical, as Justice Thomas warned, of the claim that more racial-balance means better education. To quote two other leading experts in this area, David Armor and Christine Rossell, "there is not a single example in the published literature of a comprehensive racial balance plan that has improved black achievement or that has reduced the black-white achievement gap significantly."

Bottom line: Let's celebrate the anniversary of Brown. And let's forget about racial bean-counting and, instead, focus on improving our schools, regardless of their racial makeup.

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.

The Multi-Front War against Racial Admission Preferences

Our friends at the Pope Center for Higher Education Policy recently asked me to write for them on the latest developments in the fight to end racial and ethnic preferences in university admissions.  Here’s what I said:

Racial preferences have never been popular among most Americans, and in fact they are becoming less and less popular.  

One reason is the simple passage of time. Many people felt viscerally that some sort of affirmative action made sense 50 or 60 years ago, when Jim Crow had been the law until quite recently and the beneficiaries of preferences would be individuals who had actually been the victims of ugly and overt discrimination. Now, however, university admissions preferences go to kids who were born in 1996 and who live in a country with an African-American president.  

What’s more, it is a country that is increasingly multiethnic and multiracial. Over one in four Americans now say they are something other than simply “white.” Blacks are no longer the largest minority group: Latinos are, and the fastest growing ethnic group is Asian Americans.  And it’s interesting that the number of Americans who identify themselves as belonging to “two or more races” has grown by 32.0 percent. That doesn’t even count those Americans, like our president, who are multiracial but for whatever reason declined to identify themselves in that way on the census form. 

In such a country, it is simply untenable for our institutions to classify and sort people on the basis of skin color and national origin, and to treat citizens differently — some better, some worse — depending on which silly little box is checked.

In sum, it is no longer the case that Jim Crow–advantaged whites are being displaced by just-liberated African-Americans. Indeed, it is more and more the case that preferences are used to give an advantage to Latinos over Asian Americans — to such an extent that, as one Associated Press story documented, Asian American students try at all costs to avoid identifying themselves as such on their college admission applications. Now what is the historical justification for that?

Indeed, a recent effort to reinstate preferences in a state that had banned them – California – was defeated because of outrage among Asian Americans, who stood to lose the most from the reintroduction of politically correct discrimination.

But the fight against racial and ethnic preferences in university admissions is a multi-front war. It’s an issue not only for the in the court of public opinion but also in the political branches and the courts. 

Lately, the news on all three fronts has been good for those opposing this discrimination.  There’s no reason to think that the other side is about to give up, of course, but the good news suggests that the tide is running strongly against preferences. 

The good news in the political branches began with a ballot initiative in the state of Michigan.The Supreme Court’s April 22 decision in Schuette v. Coalition to Defend Affirmative Action By Any Means Necessary ruled that it did not violate the Fourteenth Amendment’sEqual Protection Clause when voters in Michigan approved (by a wide margin) a state ballot initiative that banned the use of racial and ethnic preferences in public university admissions, along with discrimination in government employment and contracting.

Any other outcome would have been ridiculous, and it is appalling that this issue should even have made it to the Supreme Court. As Justice Scalia wrote in his concurring opinion, “We confront a frighteningly bizarre question: Does the Equal Protection Clause of the Fourteenth Amendment forbid what its text plainly requires?”

It is equally appalling that at least two justices, Sotomayor and Ginsburg, would have ruled otherwise (we don’t know how Justice Elena Kagan, who was recused, might have voted).    Still, the Court’s ruling in the case means that the political branches are free to ban racial preferences. The litigation against Michigan’s ban on the use of racial preferences looks like a desperate military offensive to recover lost territory that fails. The Battle of the Bulge comes to mind.

In states with ballot initiatives, this avenue should and probably will be pursued anew. In states that don’t have the initiative process, the legislatures can pass statutes that accomplish the same end. And if action doesn’t take place at the state level, then local governments could pass these laws. (A recent paper I co-authored provides model language.)

This is also an area where Congress should act.  To be sure, Congress actually did ban these preferences when it passed the 1964 Civil Rights Act. Title VI of that statute categorically bans discrimination in all federally funded programs, which includes all public universities (and nearly all private ones). Unfortunately, the Supreme Court has ignored the plain language and meaning of this statute, so now Congress would have to pass additional legislation, clarifying the original statute. 

As for the courts,last summer there were high hopes that the Supreme Court might put an end to racial preferences when it ruled in Fisher v. University of Texas at Austin.  It did not do so, but it did make it even more difficult for schools to justify their use of discriminatory admissions criteria. In particular, the Court made it clear that reviewing judges must demand that schools consider nondiscriminatory ways to achieve the purported educational benefits of “diversity.”

A particular example would be to require documentation of how the educational benefits of considering race in admissions would be greater than considering the educational benefits that could come from considering other, nonracial factors. Exactly how is education improved by using race to choose students for “diversity” rather than using other characteristics, such as work experience, family income, parents’ occupations, geography, or anything else? If a nonracial admissions system could achieve similar benefits, then consideration of race cannot be said to have been “narrowly tailored” as Fisher calls for.

The same legal team that challenged preferences at the University of Texas is currently looking for plaintiffs to challenge, in particular, admissions at the University of Wisconsin, the University of North Carolina–Chapel Hill, and Harvard. Other organizations [like the Center for Equal Opportunity, of course!] are gathering information on vulnerable universities, too. It’s almost a certainty that further legal challenges to the use of racial preferences will be mounted.

In the run-up to the Fisher case, we have also seen increased legal attention, even among erstwhile supporters of racial preferences, to two other objections to the continued use of racial criteria in admissions.  

The first was the overwhelming evidence that many of the supposed beneficiaries of affirmative action are actually hurt by it because of the “mismatch” phenomenon. That is to say, students who are given admission to a more selective college when they have substantially lower academic qualifications than the rest of their classmates will have trouble meeting the academic competition there. Instead of thinking only about the imagined benefits of racial preferences, people are now also thinking about this tangible cost. 

The second is an increasing sense that, if schools are trying to give some extra consideration to students who have faced disadvantages in life and can bring “diverse” perspectives and backgrounds to the university, it makes more sense to consider socioeconomic status rather than skin color. 

In conclusion,the fact of the matter is that the purported benefits of racial preferences are dubious.  It makes no sense to use race in 2014 as a proxy for social disadvantage, and the claims of “educational benefits” from random interracial conversations have never been compelling. 

Weigh against these “benefits,” on the other hand, the costs of using racial preferences, which are numerous, undeniable, and heavy. 

Among those costs: It is personally unfair, passes over better qualified students, and sets a disturbing legal, political, and moral precedent in allowing racial discrimination. It creates resentment; it stigmatizes the so-called beneficiaries in the eyes of their classmates, teachers, and themselves, as well as future employers, clients, and patients. It compromises the academic mission of the university, lowers the overall academic quality of the student body, and creates pressure to discriminate in grading and graduation. It papers over the real social problem of why so many African Americans and Latinos are academically uncompetitive. 

Racial preferences in college admissions might have seemed to be a good idea fifty years ago, but with increased scrutiny from the courts and skepticism among voters and politicians that they have beneficial results, they may not last much longer. Here’s hoping they don’t. 

The Center for Equal Opportunity Drafts Two Model Bills

FIRST MODEL BILL (antidiscrimination based on California’s Proposition 209)


(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)


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.

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.

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.

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.