Center for Equal Opportunity

The nation’s only conservative think tank devoted to issues of race and ethnicity.

Tue12122017

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Affirmative Discrimination for Firefighters?

There are, alas, no minorities or women in the Cranston fire department — the only Rhode Island city so stained.  But the city is aware of the ignominy and is aggressively trying to find suitable applicants — and indeed it admits to “loosening” its hiring requirements in order to solve this problem.

But just a second:  Is it really a good idea to be lowering standards for those in charge of saving other people’s lives? 

Councilman Michael J. Farina apparently thinks not.  “Maybe minorities don’t want to be firefighters,” he says. “I can’t see lowering our standards” to hire them, he added.

So forget Donald Trump and Hillary Clinton:  I nominate Michael J. Farina (who earlier this year switched parties, from Democrat to Republican, by the way) for president.

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Speaking of which:  Kudos to Professor Dawinder Sidhu for his fine article on “Racial Mirroring”— the notion that, say, fire departments should weigh race in their hiring in order to have a workforce that “looks like” the surrounding community — and how it “violates the Equal Protection Clause, perpetuates harmful racial stereotypes, and produces significant legal and social costs.”  He can be President Farina’s new attorney general, or first appointment to  the Supreme Court. 

I would add only that, as dubious as such race-based hiring is as a constitutional matter, it’s even harder to justify under the most relevant federal civil-rights statute, namely Title VII of the 1964 Civil Rights Act. I’ve discussed the problems with any nonremedial justification for racial preferences under Title VII here (part III, starting on p. 981). 

“New White House Policy Promotes Ethnic Separation — and Congress Should Reject It.”  That’s the title of an excellent new Heritage Foundation issue brief by Mike Gonzalez. It’s prompted by a new Obama administration policy statement, released recently, pressuring “states to support and encourage children to retain separate languages and cultural attachments” (quoting Mr. Gonzalez). 


The most important things that public schools can do are teach children to use English well and encourage a common and patriotic commitment to our country and its values. So naturally the Obama administration is trying to undermine both. 

Watch for the administration to pull out all the stops to advance a left-wing agenda during its last half-year.

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Finally, I’ve noted before that, among its many other activities, the Center for Equal Opportunity frequently weighs in when government agencies at any level — federal, state, or local — are contemplating the use of preferences based on race, ethnicity, or sex in their contracting decisions.  We urge them not to do so, naturally, and have recently targeted agencies in Illinois, North Carolina, Florida, Texas—and this month Missouri. 

To give you an idea of what this weighing-in looks like, here’s the formal comment that CEO and Pacific Legal Foundation sent to Missouri’s Commissioner of Administration:

Last month, the Missouri Register published a number of amendments to Title 1 that would expand race and sex-based considerations in public contracting in Missouri. … Pacific Legal Foundation and the Center for Equal Opportunity disagree with this rule, and offer the following perspective on why the new amendments are unconstitutional.

States are frequently urged to treat contractors and subcontractors differently based on the race, ethnicity, or sex of the companies’ owners. Missouri should not engage in such discrimination. For Missouri to use classifications and preferences based on race and sex would raise serious constitutional issues. As a result, using such classifications and preferences will invite costly litigation challenging the constitutionality of the program: litigation the state will almost certainly lose.

Using classifications and setting goals or requiring set-asides of particular racial percentages inevitably encourage discrimination as a means to meet them, and such classifications and goals must be analyzed under the rigorous strict scrutiny standard. See, e.g., Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995) (“all racial classifications . . . must be analyzed by a reviewing court under strict scrutiny”); see also Rothe Dev. Corp. v. United States Dep’t of Defense, 545 F.3d 1023, 1035 (Fed. Cir. 2008); Monterey Mechanical Co. v. Wilson, 125 F.3d 702, 712 (9th Cir. 1997). Strict scrutiny is triggered if the government makes special efforts to work with some companies, but not others, based on the race of the companies’ owners. See Monterey Mechanical Co., 125 F.3d at 704, 712 ….

Strict scrutiny requires that the government bear the burden to show that it has a “compelling interest” to use racial classifications, and the means chosen to achieve the compelling interest is narrowly tailored. Kohlbek v. City of Omaha, 447 F.3d 552, 555 (8th Cir. 2006). In the contracting context, the government does have a compelling interest in remedying past discrimination. See City of Richmond v. J.A. Croson, Co., 488 U.S. 469, 497 (1989). But this is only a compelling interest if the government identifies the discrimination it is trying to remedy. Id. at 507. And even if the government has a “compelling interest,” it must show that the means used to remedy the discrimination are “narrowly tailored” to achieve that purpose. To be narrowly tailored, racial classifications must not be “used any more broadly than the asserted compelling interest requires.” Kohlbek, 447 F.3d at 556.

Because this high constitutional burden applies if Missouri uses such racial or sex preferences, it is likely to be challenged in court and struck down as unconstitutional. That was the result in other contracting set-aside cases in New Jersey, Jackson, Mississippi and Atlanta, Georgia. Assoc. for Fairness in Business, Inc. v. New Jersey, 82 F. Supp. 2d 353 (D. N.J. 2000); W.H. Scott Construction Co. v. City of Jackson, 199 F.3d 206 (5th Cir. 1999); Webster v. Fulton County, 51 F. Supp. 2d 1354 (N.D. Ga. 1999). Not only have these programs been struck down, but the officials who adopted the unconstitutional policies have been held personally liable for doing so. See Hershell Gill Consulting Engineers, Inc. v. Miami-Dade County, 333 F. Supp. 2d 1305 (S.D. Fla. 2004); Alexander v. Estepp, 95 F.3d 312 (4th Cir. 1996) (no qualified immunity for county and fire department officials in case challenging affirmative action employment policy); Alexander v. City of Milwaukee, 474 F.3d 437 (7th Cir. 2007) (individual liability upheld for compensatory and punitive damages against various city commissioners where discrimination violated clearly established law).

Litigating discrimination and preference cases is expensive. In the event of a legal challenge, the state will have to pay its lawyers and expert witnesses. Moreover, in the likely event that it loses, Missouri may also be responsible for plaintiffs’ attorney fees and costs. See 42 U.S.C. § 1988(b)-(c). To avoid these problems, which will certainly arise if Missouri adopts a broader set-aside program, we urge that the state not adopt these amendments.

Thank you in advance for your consideration of our concerns. …