Center for Equal Opportunity

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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.

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.

The Pressure against Racial Preferences Builds

There’s an excellent discussion here of “Originalism and the Colorblind Constitution,” by Professor Michael Rappaport. The bottom line (quoting the abstract): “In addition to arguing that the evidence for the constitutionality of affirmative action under the 14th Amendment’s original meaning is weak, the Article also contends that there is relatively substantial originalist evidence in favor of the colorblind Constitution.” I came to a similar conclusion here.


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.

Just Say NO to Racial Preferences

The New York Times must really be afraid that the Supreme Court is about to do the right thing in Fisher v. University of Texas, in which the use of racial preferences in university admissions is challenged.   It ran an op-ed two Sundays ago that discusses the pending decision and acknowledges that, despite schools’ claims that race is considered as just one among many factors, it is in fact given huge weight today. This is despite warnings from the Court already (in 1978 and 2003) that the heavy and mechanical use of race is unacceptable.


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.


Racial Preferences before the Supreme Court

Most of my work last week was related to Fisher v. University of Texas, the challenge to racial preferences in university admissions in which the Center for Equal Opportunity has played such a key role, and which was argued last Wednesday before the Supreme Court.
I did an analysis of the oral argument for ScotusBlog – you can read the whole thing here, but here’s an excerpt:


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.


Bean Counting in the Big Apple (and Elsewhere)

The City University of New York has decided to add a “White/Jewish” classification to its list of “minority” faculty categories. The full list: “African-American/black, Asian, White/Jewish,Lesbian/Gay/Bisexual/Transgender, Hispanic/Latino, Individuals withdisabilities, and Italian-American.” The move does not seem to bewell-received, according to the New York Post: “Jewish professors told The Post that marking them as Jews won’t make them the chosen people on campus — and may even shrink their ranks if Jews are found to be ‘overrepresented.’”Read all about it here.