This week I thought I’d share with you an exchange of emails that is typical of one part of the day-to-day work that the Center for Equal Opportunity does.
This exchange started when one of our routine news.google.com searches — conducted several times a day, every day — hit an article about a school district’s “equity plan.” Since the plan seemed clearly to embrace hiring with an eye on race, ethnicity, and sex, this in turn prompted us to send one of our frequent emails to a local government official (here, the school superintendent), pointing out that there are laws against even “politically correct” discrimination. We got a fairly positive response, and so we followed up with some elaboration. We seem to have hit a nerve, and here’s hoping the school district — and its lawyers — revise the plan.
Here’s the (slightly edited and redacted) exchange:
April 28, 2015
Dear Mr. [School Superintendent] X,
We are writing with regard to this news story today [link provided].
We respectfully suggest that, at a minimum, you ask your lawyers to look at this “equity plan” if they have not already done so. Recruiting and hiring with an eye on race, ethnicity, and sex violates Title VII of the 1964 Civil Rights Act, and raises constitutional problems, too, when engaged in by a government body, which of course includes public school systems. There are some very limited exceptions, but they do not apply here.
These links discuss the legal problems, and of course there are also policy problems (it is unfair and divisive to engage in politically correct or politically incorrect discrimination, and this also results in someone other than the most qualified individual being hired, which is counterproductive):
http://www.nas.org/articles/A_Half-Dozen_Push-Backs_for_Faculty_Hiring_Committee_Meetings
http://www.eeoc.gov/eeoc/meetings/archive/2-28-07/clegg2.html
In our view, the school system should ignore skin color, national origin, and gender and just recruit and hire the best qualified individuals.
We respectfully request that you share this email with the school board (we could not find their email addresses on your website).
Thank you very much for your attention to our concerns.
Sincerely,
Roger Clegg
President and General Counsel
Center for Equal Opportunity
703/442-0066
Good morning Roger,
Thank you for writing to share your concerns. One of the core components of the human resources department is to hire the best and brightest for all positions. This equity plan does not prevent us from doing that. I have forwarded your email to the board and I have forwarded your email to the human resources department to request an additional legal review.
[/s/ School Superintendent X]
Thanks very much for your fast and positive response, [School Superintendent X]. I hope you’re right about the equity plan being consistent with hiring the best and brightest, and I appreciate your forwarding my concerns to the relevant folks.
I know that news stories can be inaccurate and incomplete, but we were especially concerned about the emphasis in the article on meeting various numerical goals. Experience shows that such goals often become hard — or at least soft — quotas, and of course quotas mean that the best and brightest are not being hired. For example, the article makes it sound like 11 percent won’t do if the target is 15 percent, which sounds like a pretty firm quota. It also sounds like a 50-50 gender target is going to be used to try to cut down the number of women, which ought to raise some eyebrows. And here again, one of the categories is already 57-43, so insisting on 50-50 is more evidence that quotas are going to result from the plan. The case law is clear that setting numerical goals triggers antidiscrimination laws.
Note that (as the first link we sent discusses) the law is different — and stricter in its prohibitions — for race-conscious measures involving employees than it is for students (Title VII versus Title VI).
Even with respect to students, however, we favor race-neutrality, and would note that, with respect to school discipline in particular, it is dangerous and legally problematic to set numerical racial targets. The fact is that, for a variety of reasons, there is not uniformity among different racial groups in their disciplinary infractions, and insisting that disparities be eliminated will result in either some students not being disciplined who ought to be, or other students being disciplined who ought not to be, or both. And if, say, African American students who ought to be disciplined are not, then the students who will suffer the most will be their classmates, who are also more likely to be African American. The links in the excerpts from this recent article might be useful on these points, which involve both law and policy:
Misconduct rates are not the same for different races. A 2014 study in the Journal of Criminal Justice by criminologists like John Paul Wright found that racial disparities in student discipline result from more frequent misbehavior by blacks, not racism. The study, entitled “Prior Problem Behavior Accounts for the Racial Gap in School Suspensions,” concluded that higher black suspension rates are “completely accounted for” by students’ own behavior. …
Indeed, as expert James P. Scanlan notes, harsh “discipline policies tend to yield smaller racial differences in discipline rates than more lenient ones.” The “Department of Education’s own report shows that relative racial” differences in discipline rates “are larger in districts with zero tolerance policies than those without such policies,” such as Los Angeles and Denver.
…
[Equating disparities with discrimination] contradicts the Supreme Court’s ruling in U.S. v. Armstrong. It rejected the “presumption that people of all races commit all types of crimes” at the same rate, which is “contradicted by” reality. …
The only way to equalize suspension rates for all races would be to adopt racial quotas that curb discipline for black offenders. But an appeals court ruled in People Who Care v. Rockford Board of Education (1997) that schools cannot use racial quotas in discipline, striking down a rule that forbade a “school district to refer a higher percentage of minority students than of white students for discipline.” …
Quotas would harm, not help, African-Americans, who are often victims of black-on-black violence. As Professor Joshua Kinsler found, “in public schools with discipline problems, it hurts those innocent African American children academically to keep disruptive students in the classroom,” and “cutting out-of-school suspensions in those schools widens the black-white academic achievement gap.”
Again, many thanks for your response, and I’m happy to provide further input to you or anyone else out there who’s interested!
* * *
A couple of nice shout-outs for the Center for Equal Opportunity this week: Terry Eastland — one of the executive editors of The Weekly Standard — positively cited a paper opposing felon voting that I recently coauthored, and Workforce magazine published a caveat I sent them on “disparate impact” causes of action under the Pregnancy Discrimination Act (I pointed out that the Supreme Court has never resolved whether such lawsuits can be brought, and that the Justice Department — when I was there — opposed them).
