Odds & Ends | Center for Equal Opportunity

Here’s a sample of what the Center for Equal Opportunity has been up to in recent weeks.

We have weighed in against racial preferences in government contracting with the following cities and counties: Decatur, Illinois; Leon County, Florida; Guilford County, North Carolina; Asheville, North Carolina; and Fayetteville, North Carolina. Here’s some typical language:

It’s good to make sure contracting programs are open to all, that bidding opportunities are widely publicized beforehand, and that no one gets discriminated against because of skin color, national origin, or sex. But that means no preferences because of skin color, etc. either — whether it’s labeled a “set-aside,” a “quota,” or a “goal,” since they all end up amounting to the same thing.

Such discrimination is unfair and divisive; it breeds corruption and otherwise costs the taxpayers and businesses money to award a contract to someone other than the lowest bidder; and it’s almost always illegal—indeed, unconstitutional—to boot (see 42 U.S.C. section 1981 and this model brief.

Those who insist on engaging in such discrimination deserve to be sued, and they will lose.

We weren’t delighted with all aspects of the Supreme Court’s recent decision in Bethune-Hill v. Virginia State Board of Elections, in which the Center for Equal Opportunity joined and helped write an amicus brief. But there does seem to be progress against the use of race in redistricting, whichever party is using it and whatever its motives. So for that we can be thankful. And here’s hoping that Justice Gorsuch will accelerate that progress.
In an earlier email, I mentioned that soon after she was sworn in, the Center for Equal Opportunity sent a letter to Secretary of Education Betsy DeVos about some of our policy concerns.

From the other side of the aisle, the liberal Leadership Conference on Civil Rights has now also sent her a letter, in which among other things it complains about when students are “suspended and arrested for school-related incidents for infractions as minor as disrespect or defiance of authority.”

That’s great timing, given the appalling events at Middlebury College recently when Charles Murray visited there. And, really, the “defiance of authority” is no big deal in school? Sheesh.

That letter is also ironic in that it urges Secretary DeVos to allow “interest groups on all sides of an issue to weigh in before developing policy guidance and be fully committed to the transparent operation of the office” — ironic, that is, in light of the fact that these same groups endorsed all the Obama-era “Dear Colleague” letters (on “disparate impact” and school discipline, the use of racial preferences at all levels of education, transgender bathroom policy, etc.) that were issued without any opportunity for notice and comment.

I should note that we met recently with the new chair of the Equal Employment Opportunity Commission, and plan to have meetings with other Trump administration civil-rights officials as they take office.
The Center for Equal Opportunity is, of course, a longtime opponent of the use of racial preferences in university admissions. In that regard, we would like to put this essay by Professor Peter Schuck on our supporters’ reading lists.
Here are a couple of Federalist Society telefora/podcasts in which I participated:

The first one, here, features a discussion by Judge J. Harvie Wilkinson of his recently published memoir. Judge Wilkinson and I were comrades-in-arms at the Justice Department during the Reagan administration, especially on civil-rights issues (in fact, I ended up occupying the office, literally, he left in the Civil Rights Division when he was appointed to the judiciary). You can hear me come in at the 0:56:15 mark.

The second one, here, is about a case whether it can be argued that there is an illegal “disparate impact” on the basis of age when companies focus there interviewing for certain jobs on college campuses. Sheesh (again). I come in on this one at the 0:42:40 mark, making the point that the time is long past due to get rid of the disparate-impact approach to civil-rights enforcement altogether — and that the executive branch can do this unilaterally with respect to many regulations, and that Congress should clarify and/or change the relevant statutes.

Here’s my response to a recent article in Corporate Counsel magazine:

Re “Diversity Discourse” (April 2017): It’s amazing that in this entire article there is not one single word about the legal issues that might arise from a company pressuring its outside counsel to make staffing decisions based on race, ethnicity, and sex, nor is there one single word in the entire article about what justification there is — as a matter of law or policy — to justify such race-, ethnicity-, and sex-based staffing. Just amazing.
Legal departments and law firms really ought to follow the law, and it violates Title VII of the 1964 Civil Rights Act and 42 U.S.C. section 1981 to engage in workplace discrimination on the basis of race, ethnicity, and sex (see here and here, appendix B). Even if it weren’t illegal, it is wrong to treat its lawyers differently because of their skin color or what country their ancestors came from or what kind of reproductive organs they have.

Corporate Counsel should have at least mentioned these issues rather than run a totally one-sided puff piece. Your readers deserve better.

I also emailed the general counsel of one of the companies featured in the article, making similar points.

Here’s my short response to another recent article about racial preferences in university admissions:

There’s nothing wrong with trying to have intellectual diversity, so long as you don’t lower standards very much to achieve it. But you shouldn’t use skin color as a proxy for intellectual diversity; what’s more, the proponents of racial preferences are perfectly happy to lower standards quite a bit in order to achieve skin-color diversity.

One last thought: There was a letter to the editor of the New York Times this week about how much more effective historically black colleges have been at actually graduating black undergraduates. The author attributed this all to how “welcoming” and “supportive” the schools are, compared with nonblack colleges.

But I think a better explanation is because black schools do not give black applicants preferences in admission on the basis of race — and so there is no “mismatch” problem there.

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