Published on Thursday, 01 December 2016 11:25
Written by Roger Clegg
In addition to our speaking on campuses and other venues, media outreach, and general research and writing (in National Review Online, Commentary Magazine, The New York Times, and other magazines, newspapers, and publications), here are just a few highlights of CEO’s work this past year. We continue to give unmatched bang for the buck.
Fisher v. University of Texas –This case challenging racial preferences in student admissions relied on a legal theory we developed, and before the case’s first trip to the Supreme Court we joined and helped write an amicus brief with the court of appeals, were the first to flag for conservative media the opposing Obama administration brief there, and participated in a moot court for Abigail Fisher’s counsel. We joined Supreme Court amicus briefs (at the cert stage and on the merits, highlighting CEO’s studies), helped coordinate other amicus briefs, advised Ms. Fisher’s counsel, and did extensive speaking, writing, and media “truth squad” work. After the Court’s initial positive ruling, we filed dozens of FOIA requests to determine if universities were meeting the criteria set out in Justice Kennedy's opinion (they weren’t). Then, when a lower court panel issued an opinion inconsistent with Justice Kennedy’s opinion, we helped write and joined an amicus brief urging the full appellate court to rehear the case. The Supreme Court granted review again at our urging, and again we filed a merits brief, advised counsel, and were constantly active in all media before and after the case was heard, through the day the decision was announced.
The decision that the Supreme Court handed down was ultimately a disappointment, but Justice Kennedy’s decision contained many hedges and limitations, and it did not overrule earlier decisions by the Court limiting racial preferences. The bottom line is that the Court’s decision leaves plenty of room for future challenges to racial preference policies at other institutions—and at UT itself for that matter. It’s interesting that, in the run-up to the decision, there was much discussion among liberals that maybe indeed there are better approaches to student admissions than UT’s. We’ll make sure that those discussions continue, prodded along by lawsuits that CEO is supporting and FOIA requests that we will file to ensure that all of Justice Kennedy’s hoops have been jumped through. And we are already in touch with state legislators about the possibility of legislation banning racial preferences which, the Court has explicitly upheld (as we had urged it to). Mr. Clegg explained to the media—and to college officials at a conference this fall sponsored by Inside Higher Ed—that CEO will be watching universities to ensure they follow the law. We are in touch with allies at NAS and elsewhere about FOIA requests, and with ACTA about its role here.
Other Court Cases – We worked with Pacific Legal Foundation regarding its recent cert petition in a case challenging racial preferences in employment, and in a number of federal appellate cases involving racial preferences in government contracting. We are also now working on a wide variety of cases involving the defense of voter ID requirements, where we argue in particular to limit the use of the disparate-impact approach, and in two Supreme Court cases now pending that involve redistricting issues, where we seek to minimize the use of race. In all these cases we have joined and help write amicus briefs with our allies.
Federal Register – We review this every day and file formal comments, often several times a week, on proposed rules and regulations. We have succeeded in removing racially preferential language in a wide variety of programs.
Lawmaking (With and Without Congress) – Consistent with our nonprofit status, we continue to play a key role in publicizing objectionable legislation (in particular, post–Shelby County voting bills)—and, relatedly and more and more frequently, executive branch efforts to “legislate” without Congress. For example, we are currently working with other conservative groups to oppose the administration’s efforts to declare that Native Hawaiians are an Indian tribe; we have earlier (including through formal comments) pointed out the unconstitutionality of this measure, and that the reason the administration is pursuing this is because of Congress’s refusal to pass legislation in this area. We are also opposing an administration proposal to expand the federal government’s use of racial classifications in its programs. At both the federal and state level, we have been extremely active this year in explaining to the public why the automatic re-enfranchisement of felons is a bad idea, and why racial disparities do not prove racial discrimination in areas like law enforcement and school discipline.
Contracting – We have sent memoranda to a wide variety of local governments—and been in touch with local officials—warning them not to use racial preferences; as noted above, we are also involved as amici in litigation, and have advised other potential litigants; and we are working with Hill staff to commission a GAO study on the (legally dubious) use of such preferences.
Coordination and Clearinghouse–Finally, the Center for Equal Opportunity plays an important role in disseminating information on our issues to other conservative groups (for that matter, we also serve as an “early warning system” for conservatives on nonracial issues, like sexual-assault and free-speech issues on campus and sexual identity/bathroom access). For instance, it began and continues to co-host (with the Heritage Foundation) a monthly Civil Rights Working Group lunch attended by like-minded organizations, congressional staff, and other government officials. Mr. Clegg draws up the meeting’s agenda and leads the discussion. He also leads the discussion of equal protection issues at the Heritage Foundation’s semiannual Legal Strategy Forum, and advises individuals and organizations that have run afoul of politically correct (and racially discriminatory) policies. Equally valuable is Mr. Clegg’s work over the years on the Executive Committee of the Federalist Society’s civil rights practice group; both he and Ms. Chavez speak frequently to Federalist Society student and lawyer chapters. Ms. Chavez is chairing the committee on “Race and Sex” in the Federalist Society’s new Law & Innovation project; Mr. Clegg is also on the committee.