Center for Equal Opportunity - THOUGHTS ON THE LEGAL LANDSCAPE OF RACIAL PREFERENCES--AND, ESPECIALLY, WHAT LITIGATION CAN ACCOMPLISH

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THOUGHTS ON THE LEGAL LANDSCAPE OF RACIAL PREFERENCES--AND, ESPECIALLY, WHAT LITIGATION CAN ACCOMPLISH

THOUGHTS ON THE LEGAL LANDSCAPE OF RACIAL PREFERENCES--AND, ESPECIALLY, WHAT LITIGATION CAN ACCOMPLISH

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Written by Roger Clegg
Thursday, 31 January 2008
Introduction: The use of racial preferences is concentrated in four areas: voting, contracting, education, and employment. There are some exceptions (e.g., appointments to state boards, some aspects of health care, etc.), but they are relatively minor. Voting: With regard to voting (i.e., the requirement of racially gerrymandered districts under the Voting Rights Act), the issue is federalized (i.e., there is nothing that the states can do about it), and there is nothing to be done through the political branches (Congress overwhelmingly reauthorized these provisions last summer, and the President eagerly signed the bill). Thus, all that can be done for now is to challenge the constitutionality of the VRA; at least one lawsuit has been filed and is pending before a three-judge district court in the District of Columbia. For a discussion of the VRA's unconstitutionality, see here. With respect to the other three areas, the status of the law varies, and so does the role of the federal government versus state and local governments versus the private sector. Contracting: For instance, the case law with regard to contracting is very favorable to us for challenging state and local preferences. We rarely lose these cases. It has also been possible to find willing plaintiffs (i.e., companies that have lost out on contracts), and many cases have been brought by antipreference public interest groups (e.g., Pacific Legal Foundation, Mountain States Legal Foundation, Atlantic Legal Foundation, Southeastern Legal Foundation, etc.). On the other hand, lots of these programs still exist. The case law is not nearly so favorable with regard to federal contracting preferences, although we have won some cases there, too. Congress, of course, is not going to change these preferences, although there are some incremental improvements that can be made unilaterally by the Executive Branch. See http://article.nationalreview.com/?q=MDZhZjViZDU3NjZhZGVmZmJlYWRhNDk1ODg5NzNkZWE= What's needed: Ultimately, we need a Supreme Court decision holding that, while of course remedying discrimination is a compelling interest (the only one advanced for contracting), it is now basically impossible for the use of preferences to be narrowly tailored, since discrimination can always be corrected in the contracting area without preferences--by the advertising of bidding opportunities, transparency of the award process, and vigorous enforcement of antidiscrimination rules. See http://www.ceousa.org/index.php?option=com_docman&task=doc_view&gid=192 Education: I would also divide education preferences into two parts, but differently. The first is K-12 preferences in student assignments. This is the issue that the Supreme Court ruled on in the Seattle and Louisville cases last year. It was a good decision, and whether there is much more work to be done here will depend on how school boards react to it; the jury is still out on that. See http://article.nationalreview.com/?q=ZDFjODM4NDM4Njk1ZmJiZDY2NWNkMmEyYjgyOTRkYzk=; see also http://article.nationalreview.com/?q=ZjRmZjk1MGJkOTk3YTQxMTQyODA3NjBlMDgyYjI0MDI= The second area of education preferences is, of course, at the university level. With regard to admission preferences there, there is little political accountability (unlike at the K-12 level), and the political branches at no level seem willing to act. CEO has pushed for "sunshine" legislation at both the federal and state level, but it's an uphill battle. See http://www.ceousa.org/content/view/453/119/ The federal Department of Education could be aggressive in monitoring the use of admission preferences, and we have filed some complaints with them-some based on admissions data we have obtained through FOIA requests filed by us and the National Association of Scholars-but, as useful as this pressure is, it can only limit the use of preferences; it won't end them. For that, there has to be a ballot initiative in the relevant state or a Supreme Court victory overturning Grutter v. Bollinger (2003). Universities also use nonadmission preferences (e.g., summer programs, internships, and scholarships). CEO has been quite successful in ending the racial exclusivity of these programs (occasionally by filing complaints with the Education Department, which has played a helpful role); sometimes our efforts have also resulted in ending even a program's racial preference. A lawsuit by the Center for Individual Rights against Virginia Commonwealth University, the Dow Jones foundation, and the Richmond Times-Dispatch recently ended the use of preferences in a summer journalism program jointly run by these three entities that had been racially exclusive; I think CIR would be happy to file more such lawsuits, if it found the programs and had plaintiffs. The case law is pretty clear that racial exclusivity is illegal, but probably some degree of preference is allowable under Grutter. Here again, the latter is unlikely to change absent a ballot initiative or Supreme Court decision (and, even then, these programs can probably remain if they are run by outside organizations-e.g., the Bill Gates foundation). What's needed: We need to chip away at the Grutter decision--limiting the circumstances when a university's interest in preferences is "compelling" and "narrowly tailored," both in admissions and in nonadmissions contexts. Ultimately, of course, Grutter delenda est. Employment: That leaves employment. Here I would divide the issues into the public sector and the private sector. Employers in the former are probably more vulnerable, but of course they make up a relatively small proportion of jobs in this country. Public sector employment preferences are more vulnerable because they are more overt, and they are subject to attack under both Title VII of the 1964 Civil Rights Act and the Fourteenth Amendment, as well as ballot initiatives; in addition, the Justice Department has enforcement responsibility in this area, and it is more antipreference than the Equal Employment Opportunity Commission (which has enforcement responsibility for the private sector). Private sector preferences are often more carefully disguised, and they cannot be challenged constitutionally (although it is possible that they will be held to the same standard as the Constitution under 42 U.S.C. section 1981). What's needed: The case law for both public and private employment preferences is complicated and ambiguous; I think the law is most fairly read as allowing preferences only in (increasingly) rare situations. See my article in Engage (page 25): http://www.fed-soc.org/doclib/20071120_Engage8.4.pdf. Nonetheless, we could use a good decision or two here, too (we had the opportunity in the Taxman v. Piscataway Board of Education case eleven years ago, but the civil rights establishment bought off the plaintiff and her lawyer)--specifically, a Title VII decision that, while it may leave Weber and Johnson intact, nonetheless rejects the diversity rationale and makes clear that "manifest imbalance in a traditionally segregated job category" requires some showing of relatively recent discrimination that cannot otherwise be remedied. Barring that, it would be useful to limit public employers' discrimination, at least, by getting a decision that rejects a "diversity" rationale for employment discrimination as compelling in the constitutional context (there is already a contrary ruling in the Seventh Circuit). Conclusion: The upshot of all this is that the struggle against racial preferences is a multifront one. The fronts are interrelated, however: A victory on any one of them usually helps on the other fronts, too. Progress on each of them is, in particular, facilitated by demonstrations that preferences are unpopular with the public-another reason that successful ballot initiatives have been so important. Nonetheless, absent federal legislation (very unlikely in the short term), significant progress will require good judicial decisions as well as state referenda. Let's sue!

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See also.. K-12 Education

See also.. Preferences in College Admissions