Center for Equal Opportunity

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


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Summary of Recent CEO Achievements

The Center for Equal Opportunity recently prepared for a donor a one-page summary of our achievements over the past twelve months, and I’d like to share it with you.  It makes clear that CEO, a very lean organization, really punches above its weight, and gives our supporters unmatched bang for the buck.

2016-2017 CEO Activities Report

In addition to the Center for Equal Opportunity’s 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 should note first, however, that in September we hired former Reagan administration official, author, and prominent affirmative action critic, Terry Eastland, as our new senior fellow. He will be working on a variety of anti-preference projects in the coming weeks and months. In some of them, he will join forces with CEO research fellow Althea Nagai, who published an important article on microaggressions this year and will publish another important article on “unconscious bias” in December.

Trump Administration – CEO has worked with the Trump administration to make executive branch appointments and fashion policies consistent with colorblind law. We feel we have had success in both areas so far (we were prominently quoted in a New York Times front-page story supporting the administration’s investigation of racially preferential university admissions), but more remains to be done. One example: As discussed later, CEO plays an important role on a Regulatory Transparency Project committee that has recommended withdrawal of Obama administration “Dear Colleague” letters regarding transgender students (done), campus sexual assault (done), and the disparate-impact approach to school discipline (pending).

Making the Most of Fisher v. University of Texas–This case challenging racial preferences in student admissions relied on a legal theory we developed. CEO was heavily involved in every aspect of the case and was a prominent media presence. 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 been sued now in state court). We are 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 last fall sponsored by Inside Higher Ed and in essays published there, including one this fall—that CEO will be watching universities to ensure they follow the law. We are in touch with a number of allies about FOIA requests and other initiatives.

More Court Cases – We worked with Pacific Legal Foundation regarding its recent cert petition in a case challenging racial preferences in contracting, and with Southeastern Legal Foundation in a federal appellate case involving interminable school desegregation orders that needlessly thwart local control of education. 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 were in two Supreme Court cases that involved redistricting issues, where we seek to minimize the use of race.  In all these cases we have joined and helped write amicus briefs with our allies.

Federal Register – We review this every day and file formal comments 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.  We are also opposing a pending proposal (carried over from the Obama administration) 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 Regulatory Transparency Project; Mr. Clegg is also on the committee.

Happy Thanksgiving from the Center for Equal Opportunity!

Happy Thanksgiving, CEO supporter! 

One of the things we’re most thankful for here at the Center for Equal Opportunity is the kind and constant letters, phone calls, and emails we receive from all over this great country, supporting us in our work.
Here’s an example:  We were recently contacted by a resident of Erie, Pennsylvania, who reached out to us because she remembered that we frequently challenge on a national basis the politically correct narrative that blames all racial disparities on racial discrimination.  I’m including her email to us below – it’s very well done, and she makes many of the points that CEO likes to make.  Great minds think alike:

Dear Roger,

I was very disappointed to read the article in USA Today which noted, "Lower incomes, educational attainment, and homeownership among black Americans, as well as higher poverty, unemployment, incarceration, and mortality all contribute to racial inequality in the United States.  In some of America's metro areas, discriminatory policy, racial bias, and a history of oppression have deepened such inequalities and widened the gap between black and white residents in a variety of socioeconomic measures.”  The article goes on to list the 5 worst cities for blacks in these areas, and my city, Erie, Pa. is #1.

The article does not mention the one major contributing factor that is directly related to these social disparities and that is the fact that nearly half (48.9%) of Erie County live births were to unmarried mothers. The percentages listed by statistics on  are 43.6% for whites, 83.3% for blacks, and 70.2% Hispanic, and the staggering fact  from our own US Census Bureau is that marriage drops the probability of child poverty by 80%. Weak family structure not only accounts for rates of poverty, but many other disparities. The data from the Fatherhood Initiative and the Heritage Foundation show children raised in single-parent households are more likely to have emotional and behavioral problems, more likely to be physically abused, smoke, drink alcohol and use drugs, be aggressive and engage in violent delinquent and criminal behavior, have poor school performance, and be expelled from school or drop out from school. 

According to Dr. Walter Williams,  … blacks must confront the sad reality that if we conclude that racial discrimination is the major cause of black problems, when it isn't, the effective solutions will be elusive forever.  He points out that the Census Bureau pegs the poverty rate among blacks at 35%, but that the poverty rate among intact black families is only 8%!  He also points out that sadly each year, roughly 7,000 blacks are murdered, and 94% of the time, the murderer is another black person. He states that although blacks account for 13% of the nation's population, they account for more than 50% of homicide victims — why aren't we seeing national outrage from these statistics when it comes to Black Lives Matter?

Instead of just stating that black disparities exist in so many areas, when do we begin to shape policies in local, state, and federal governments to reward personal responsibility for committing to raising children?  Surely black and white leaders can come together to insist on change in policy like tax benefits for married households, funding directives in school to encourage youth not to engage in uncommitted sexual choices, and giving minority children access to charter/Catholic and other private school settings for improved school outcomes, which will yield better jobs and income. 

Erie has been my family home for over 20 years, and I wish we could gather community leaders to see what other measures we could implement to improve these sad statistics.

Well said, ma’am!

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The Federalist Society’s Regulatory Transparency Project – The Center for Equal Opportunity is also thankful for the opportunities we have to team up with other fine organizations to work on issues of common interest. 

In the regard, I’ve written before about the Federalist Society’s Regulatory Transparency Project (RTP), but this is a good week to do so again:  The former’s annual convention was held last week and, since the meeting’s theme this year was

“Administrative Agencies and the Regulatory State,” much work of the latter was showcased directly or indirectly.

The basic idea of the RTP, which began about a year-and-a-half ago, is to foster a nationwide conversation about areas where the costs of regulation exceed any benefits. The RTP consists of twelve working groups — Antitrust & Consumer Protection, Cyber & Privacy, Energy & Environment, Enforcement & Agency Coercion, FDA & Healthcare, Financial Services & Corporate Governance, Intellectual Property, Emerging Technology, Labor & Employment, Race & Sex, Regulatory Process, and State & Local — with an impressive array of scholars, professors, lawyers, and professionals who analyze how specific regulations can stifle innovation, impede opportunity, and harm the very people they were designed to help. To this end the RTP publishes white papers, posts podcasts, records videos, hosts telefora, and holds events across the country to explore the strengths and shortcomings of government regulations and policies. Input from the public is eagerly sought.

Just to give you the flavor: Earlier in the year the RTP released a paper prepared by its “Race & Sex Working Group” (love that name, and I’m proud to be a member of it). The paper critiqued three areas of Obama-administration overreach by the Department of Education’s Office for Civil Rights: transgender bathroom and locker-room access under Title IX; investigations by universities of sexual-assault and harassment claims, also under Title IX; and requirements that school-discipline policies not have a “disparate impact” on the basis of race, under Title VI of the 1964 Civil Rights Act. 

By the way, in addition to my being a member of this committee, it is chaired by Linda Chavez, who of course is also the chairman of the Center for Equal Opportunity.

Here are links to the project’s homepage and an introductory video. Its work is worth following, and the Center for Equal Opportunity will continue to play an important role in supporting it.

Policy Can't Trump Undermining of Democratic Norms

For conservatives who support much of President Donald Trump's agenda but find his character and commitment to democratic norms and the Constitution lacking, a week such as this one is challenging. On the one hand, the president has succeeded in spurring the House of Representatives to introduce a major tax overhaul that will be good for the economy and will benefit both families and businesses, fulfilling one of his major campaign promises. For many conservatives, this is enough to justify supporting a man who has no ideological ballast and whose behavior makes most of the country cringe. As one dear friend of mine -- a former state legislator and a man of real character and faith -- put it to me when I challenged his criticism of those, like me, who don't think Trump is fit for the office he occupies: "Policies, bingo, you said it. ... I can't find a reference in the Constitution to the chief executive as a moral exemplar." But is policy all that matters? And if principle doesn't drive policy, how can we know whether we can trust that it won't change when expediency or political advantage dictates?

This week also displayed the president's glaring defects. When a terrorist struck New York this week, killing eight people and injuring a dozen others, President Trump was quick to blame the justice system and immigration policy for the horrific attack on innocent people biking and walking along a path in lower Manhattan. He also suggested that he'd have the suspect, who was injured by police and in custody, shipped to Guantanamo Bay, though he backtracked later, probably when someone explained to him that the man's legal permanent resident status and the fact that the crime took place on U.S. soil would make that option difficult. But the president followed with calling for the attacker to be put to death for his crime -- before he had even been charged.

That type of reaction would be understandable from a man on the street. All of us react in anger and want quick retribution when something like this happens. But the president of the United States should not attack our justice system by claiming, "We need quick justice and we need strong justice, much quicker and much stronger than we have right now -- because what we have right now is a joke and it's a laughingstock. And no wonder so much of this stuff takes place." When he does so, he undermines the judicial system itself, essentially saying this coequal branch of government is a failed institution. The American judicial system is the best in the world, and it has punished terrorists with swift and sure justice, including imposing the death penalty on Dzhokhar Tsarnaev for the 2013 Boston Marathon bombings and murders and six consecutive life sentences on Zacarias Moussaoui for his role in the 9/11 World Trade Center attacks. America does not engage in vigilantism; we abide by the rule of law, including due process for the accused, no matter how heinous the crime, under the Constitution -- which the president swore to uphold.

But perhaps the worst part of the president's reaction to the attack on Americans was his knee-jerk reaction to blame our immigration system for the deaths. Ending the diversity lottery (which admits about 100,000 permanent residents and their families to the U.S. each year from countries that do not contribute large numbers to our immigrant population) will do nothing to stop terrorism. The president was quick to blame immigration policy for the New York City deaths but loath to blame gun policy for the far deadlier attack in Las Vegas a month ago. Yet the correlation seems far clearer between the high number of deaths in Las Vegas and the shooter's legal access to an obscene number of weapons (47 modified rifles with high-capacity magazines were recovered in his hotel room) than any link between terrorism and our legal immigration policy. But the president and a large part of his base favor virtually unlimited access to guns while opposing immigration, legal as well as illegal. Politics, not policy, dictate why reactions to two terrorist acts differ.

Tax reform will make Americans wealthier, but President Trump's attacks on our judicial system and other institutions of democracy undermine our fundamental freedoms. We can survive as a democracy without the former, but not without the latter. I will continue to support President Trump's policies when I think they are good for the country. But I continue to believe that whatever good a specific policy might bring, it is far outweighed by his undermining of our institutions and his flouting of democratic norms.

His Day in Court

"If men were angels, no government would be necessary," James Madison argued in Federalist 51. But he went on to say, "If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions." These words were written to argue for a system of checks and balances in our Constitution, but they have some relevance to the controversy over Alabama Republican candidate for U.S. Senate, Roy Moore.

The people of Alabama may well choose Moore as their senator, despite continuing allegations that Moore engaged in predatory behavior toward young girls when he worked as an attorney in Gadsen, Ala., and, in two instances, may have sexually assaulted underage girls. Moore's supporters disbelieve the women who have come forward and blame the media and so-called establishment Republicans for a witch hunt.  Moore's wife has spread false rumors that the accusers were paid to tell their stories, and others have defended Moore's actions by comparing the then 30-something attorney to the Biblical Joseph and his betrothed Mary, the mother of Jesus Christ. That devout Christians are not sickened by such comparisons speaks worlds about the state of our politics today.

If Roy Moore were a decent man, he would step aside.  But I said the same thing about Bill Clinton in 1998, when the Monica Lewinsky scandal broke, and we all know what happened.  Instead of doing the manly thing, Clinton clung to power and put the nation through the spectacle of semen-stained dresses and "It depends on what the meaning of 'is' is."  Clinton's defenders were liberals, including feminists who saw nothing wrong in a 51-year old commander in chief engaging in sex acts with a 21-year-old intern in the Oval Office.  Their defense was that his policies were good for the country, never mind his "private" behavior. Moore's supporters say much the same today.

The most disheartening aspect of this story -- even in the context of many dozens of stories of sexual misconduct by powerful men in Hollywood, the media and, now, Congress -- is the double standard being applied by those in the Evangelical community.  There was a time in the not too distant past when personal character mattered a great deal to Evangelical voters.  But that view has been eroding for some time now -- among all groups -- but especially among Evangelicals. In 2011, only 30 percent of Evangelicals said, "an elected official who commits an immoral act in their personal life can still behave ethically and fulfill their duties in their public and professional life," but by 2016, 72 percent agreed in a poll taken by PRRI/Brookings.

So, what should happen if the good people of Alabama elect Roy Moore, despite credible allegations of misconduct?  As Federalist 51 says, "experience has taught the necessity of auxiliary precautions" when the people fail. The rules of the U.S. Senate don't allow the option not to seat Moore if elected, but they do allow, under Article I Section 5 of the Constitution, that the Senate may expel him by a two-thirds vote. If Alabama voters send Roy Moore to Congress, the Senate should exercise the extraordinary means at its disposal. Those who defend Moore say he deserves "his day in court," so give it to him by allowing both accused and his accusers testify under oath before the Senate.  And if the accusers' testimony holds up -- as I believe it will -- the Senate should vote to expel him.

It would be far better for everyone involved if Roy Moore did the honorable thing and stepped aside.  But given the credulity of his supporters and the current state of our politics, I don't expect that to happen, which is why James Madison's argument for "auxiliary precautions" has never been more relevant.

Justice Scalia on Writing Well: It takes time and sweat

Writing this for The Weekly Standard, I was struck by just how well-crafted were Scalia’s own speeches. With the good writers, a reader waits for a surprise—a deft choice of words, an illuminating metaphor, some shrewdly placed humor. Dip into Scalia Speaks and you’ll have many such surprises.


Justice Scalia was a terrific writer. And he thought about the craft, and what it requires. A short speech titled “Writing Well,” given to a group of legal writers who were giving him a lifetime achievement award, is fantastic.

In the speech, as recounted in the recently released book Scalia Speaks, Scalia said legal writing does not exist—not as a separate genre of writing, the way poetry and playwriting do. “Rather, I think legal writing belongs to that large, undifferentiated unglamorous category of writing known as nonfiction prose.” Meaning that if you’re good as a legal writer, you could be “equivalently good” as a writer of history or economics or theology. “Had he been a lawyer,” the justice said, “C.S. Lewis would have been a magnificent legal writer.”

Scalia learned from his law students at the University of Virginia Law School that there is no such thing as legal writing. What they lacked, he said, was “not the skill of legal writing but the skill of writing at all.” Nor did he think that skill could be taught. Scalia settled on trying to teach his students that there was “an immense difference between writing and good writing” and that it took “time and sweat to convert the former into the latter.”

The justice elaborated on what time and sweat meant in his case. During his first semester as a freshman at Georgetown College, he had an English composition professor who was “a damned-hard grader” and gave him some B minuses on his first papers—not what the recently matriculated college student Scalia was used to. The teacher gave weekend assignments, and for the rest of the weekends in that semester Scalia said he “devoted many nervous hours to writing and rewriting.” You can bet his grades got better.

Scalia thought there was such a thing as “writing genius.” It consists “of the ability to place oneself in the shoes of one’s audience; to assume only what they assume; to anticipate what they anticipate; to explain what they explained; to think what they must be thinking; to feel what they must be feeling.” A rare ability, Scalia knew.

Scalia closed his speech by observing that “a careless, sloppy writer has a careless, sloppy mind.” Such a writer is not really a writer, though the individual could become one. How? The Scalia way. With more time and sweat.

Cynicism Isn't a Winning Strategy

Republican Ed Gillespie lost his bid to become Virginia governor this week by running one of the most cynical campaigns in recent memory. Gillespie is no racist, but he appealed directly to racism during the campaign. In a state with a growing Latino and immigrant population, four of his campaign ads focused on MS-13, a violent Latino gang, with the words "Kill, Rape, Control" flashing across the screen. But Virginia has one of the lowest violent-crime rates in the country, and the images used in the ad weren't even MS-13 members, much less Virginia residents, with the most frightening photos of heavily tattooed men taken in a prison in El Salvador. Not content to try to scare Virginians into voting for him, Gillespie dog-whistled a favorite alt-right meme as well, promising to protect "our" heritage, by which he meant displaying Confederate statues on public grounds. But Robert E. Lee and Jefferson Davis aren't exactly heroes to the 20 percent of Virginia voters who are African-American.

Gillespie's campaign advisers convinced him that such appeals were his only chance of winning. They were wrong, but even if they had turned out to be right, is winning the only thing that matters today? Gillespie once embraced the notion that reaching out to Hispanics and others who are not part of the traditional base of the GOP was badly needed, even championing a path toward legal status for undocumented immigrants. When Republican gubernatorial candidate Jerry Kilgore lost in 2005, Gillespie, who had just finished his first stint as Republican National Committee chair, blamed a series of anti-illegal-immigration ads for Kilgore's defeat. But with the siren call of Trumpists beckoning, Gillespie sailed to defeat on even more egregious ads than Kilgore's.

President Trump quickly blamed Gillespie's loss on the candidate's failure "to embrace (Trump) or what (Trump stands) for." It's true Gillespie didn't campaign with Trump, but the president lost the state in 2016, and he is less popular today than he was a year ago. If anything, Gillespie lost because he tried to morph into Trump, not run away from the president's toxic brand of politics. It should be a lesson to Republican candidates around the country, particularly those -- and there are many -- who don't share the president's views on race and immigration.

America is not a racist country, and appeals to racism turn off far more voters than they appeal to. Americans were horrified by what happened in Charlottesville this summer, with white nationalists shouting "Jews will not replace us" as they marched through the city to oppose the removal of Confederate statues on public grounds, with one young woman killed when a self-described neo-Nazi ran his car into the crowd. Nor is anti-immigration fervor gripping the country. Exit polls in Virginia show that the No. 1 issue on voters' minds was health care. Immigration was the top voting issue for only about 12 percent of Virginians, ranking below all others except abortion. And while immigrants have changed the face of Virginia over the last 20 years, with about 1 in 8 residents now foreign-born, those immigrants have helped revitalize Virginia's economy and are neighbors, co-workers, friends and family to many native-born voters -- not to mention that immigrants who have naturalized vote, too.

If Republicans hope to retain control of Congress in next year's election, they had better figure out a better strategy than Ed Gillespie's. Given the president's unpopularity -- he's the least-popular president one year after his election than any president since polling began, with less than 40 percent approval -- Trumpism isn't a winning message. Americans are fed up with hate and scapegoating, especially when it is accompanied by incompetence and the failure to get any meaningful legislation through Congress. If Republicans learned anything Tuesdaynight, it should be that Trump doesn't help the GOP; and when the GOP loses, he's quick to disassociate himself from the party and its candidates. With friends like Donald Trump, who needs enemies?

The Shaming of George H.W. Bush Is Obscene

The recent allegations against former President George H.W. Bush for "sexually assaulting" young women who stood next to him during photo shoots are obscene -- but not because of what the president did or did not do. Enough is enough. President Bush is 93 years old. He sits in a wheelchair, and anyone who witnessed his appearance last week when all the living former presidents gathered to help raise funds for hurricane victims can plainly see that he is much diminished, physically and mentally. Unlike former President Ronald Reagan, who publicly announced that he was suffering from Alzheimer's disease, neither Bush nor his family has talked much about his declining mental capacity -- but it is clearly there.

President Bush did not assault young women when his hand, which rests at a lower level because he cannot stand, touched their bottoms and he covered up his awkwardness with a bad joke about his favorite magician, "David Cop-a-Feel," as they allege. His behavior is perfectly consistent with what doctors who treat patients with dementia call sexually disinhibited behavior. The risk of developing Alzheimer's or other forms of dementia increases with age, doubling every five years after age 65. At age 80, 1 in 6 people will have developed the disease. By 85, it goes up to 1 in 3, and by 90, 85 percent of people lucky enough to still be alive are likely to have some dementia, according to the Alzheimer's Society.

Like many elderly men -- and women -- President Bush said and did something inappropriate not out of malice or with the intent to harm but because he now lacks the judgment to behave as he did all his life. And those who are using this incident to score political points or to turn themselves into victims akin to women who have been assaulted by individuals with all their mental faculties intact should show a little mercy.

I saw this behavior firsthand with a relative who had Alzheimer's for at least 10 years before dying of the disease at 93. One of the first signs that something was wrong was inappropriate sexualized talk. At first, the comments were just out of character and inappropriate, but they grew to be very disturbing over time. As far as I know, nothing physical ever happened, but having spoken with those who work with the elderly in nursing homes, it happens every day, and both men and women engage in such behavior. It is one of the most embarrassing things about dementia for those whose family members suddenly start acting in ways they never would have if disease were not eating away at their brains.

According to a scholarly paper on the issue published in Current Treatment Options in Neurology, inappropriate sexual behavior "should be seen as a part of the symptom cluster of behavioral and psychiatric disturbances associated with dementia, which is disruptive and distressing, and impairs the care of the patient." It isn't something for which others should shame someone, much less criminalize. We should recognize when behavior is driven by disease -- in this case a devastating, fatal disease that strips individuals of everything that made them who they were.

It broke my heart to see President Bush onstage with his son and other former presidents. His eyes were vacant. He seemed not to know where he was or even why he was there. When the national anthem played, his hands stayed at his side and his eyes wandered. Does anyone think that President Bush would have sat there so confused if he were in control of his faculties?

The former president's office has issued an apology on his behalf to the women who have come forward, which is absolutely appropriate. And perhaps the family should say more about the former president's condition; President Reagan's candor did a great service for those families who have suffered through the experience of their loved ones' dementia. But to treat this incident as if it were akin to the stories about men who used their power and fame to demean women and solicit or force sex or sexual contact is disgraceful. It not only hurts an honorable man who served his country but also demeans the real victims of sexual assault.

Cooper Quotas

North Carolina governor Roy Cooper (D) announced last week a statewide goal of 10 percent for government contracting with minority-owned firms (defined by race, ethnicity, sex, and disability). He’s not alone with such nonsense; indeed, New York governor Andrew Cuomo (D) has set a goal of 30 percent in his state.

Now, it’s good to make sure public 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, and courts have ruled all to be presumptively unconstitutional.

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 as noted it’s almost always illegal — indeed, unconstitutional — to boot.

On the legal point, there are two problems here. First, before the state can use racial classifications, it must at a minimum do a “disparity study” that documents evidence of discrimination in a specific contracting area that has to be remedied. Governor Cooper gets the process backward: He sets the racial goal, and then says it can be adjusted if some disparity study comes along that proves it’s too high.

Second, and in any event, in 2017 there’s no reason why quotas are the “narrowly tailored” way to remedy any discrimination. Rather, the state should ban racially preferential treatment for any group, enforce that ban, and require plenty of transparency — in publicizing bidding opportunities and in announcing the winners — to avoid cheating.

Contracts are not like employment selection or university admissions, where there is often an irreducible and significant amount of subjectivity in the decisionmaking. Rather, the low-bid process in government contracting can be made very transparent at every step, and this transparency should make it relatively easy to achieve any remedial purpose, that is, to detect and correct discrimination. This is an area where, as Chief Justice Roberts wrote famously, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

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Heroic Book Review --  I’d like to add my voice to the chorus praising Scalia Speaks:  Reflections on Law, Faith, and Life Well Lived, the recent compendium of speeches given by the late, great justice. In doing so, let me offer a couple of points that I’ve not seen made elsewhere.

First, because this is book is not only entertaining and thoughtful but also accessible to nonlawyers — the speeches are divided into six categories, only one of which is “On Law” — it’s a good way for us conservative lawyers to show our laymen friends the reason we loved Justice Scalia as we did. This sort of enthusiasm is not always easy to explain without eyes glazing over; to outsiders, I suspect, the Federalist Society annual meeting must seem like Sesame Street’s “National Association of W Lovers,” where W stands for Scalia. Anyway, I’m giving a copy to my parents as a Christmas present.

Second, the insights are as fresh as today’s newspaper. Case in point: The day I finished the book some columnist criticized on separation of powers grounds those politicians who attack judges; well, Justice Scalia explains more than once in this book that, when judges act as politicians, their being treated as such is not only inevitable but even desirable, if the only alternative is to accept their rule as that of a new aristocracy.

Now, it is common knowledge that one of the book’s editors, Ed Whelan, is a good friend, so to show that I am not in the tank, let me note: (1) the editors are not perfect, and I did find one typo in the book (on page 310, the failure to capitalize the last word in “Grand Army of the republic”); (2) Justice Scalia should have credited Emil Faber rather than simply plagiarizing the latter’s trenchant observation, “Knowledge is good” (page 328); and (3) it was unconscionable for my hero Justice Scalia to characterize, albeit indirectly, William F. Buckley Jr., another hero of mine, as “one smart-aleck political commentator” (page 329).

Still, all is forgiven since I now know that Justice Scalia, proud Italian-American Catholic though he was, was also apparently a fan of the Irish-British Protestant and a third hero of mine, C.S. Lewis. The justice pays him this fine compliment: “Had he been a lawyer, C.S. Lewis would have been a magnificent legal writer.” And had he had the chance to read what Justice Scalia has to say “On Faith,” I’m sure Mr. Lewis would have found some way to return the compliment.

A fine book!

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A First-Rate Article on the Second Amendment – In light of the horrible shootings near San Antonio over the weekend, I’d like to commend to our readers this article by Professor Nelson Lund. It’s a thorough discussion of a recent gun-control column in the New York Times by Bret Stephens. It’s worth reading not only as a response to Mr. Stephens, but for its broader defense of the right to bear arms, and no one knows more about the Second Amendment than Professor Lund.

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The Washington Post Doesn’t Get It – The Washington Post this week devoted a long and astonishingly one-sided news story to the efforts of Native Hawaiians to turn themselves into a federally recognized Indian tribe, without saying one word about the conservative objections to this. The basic problem is that there is a big difference, as a matter of law and policy, between the federal government acknowledging a preexisting political entity, versus creating a brand-new such entity on the basis of race or ethnicity. As a legal matter, the Supreme Court has warned about the potential problems here with the equal-protection guarantee of the Constitution (see its 2000 ruling in Rice v. Cayetano). And as a policy matter, this is more balkanization and identity politics, just what the United States does not need.

Apple Turnover

Once again we learn that, in Silicon Valley as elsewhere in Corporate America, there is no place for politically incorrect truth-telling. What’s more, what the law says is not even part of the conversation.

The latest kerfuffle involves Apple’s vice president of “inclusion and diversity,” who made the following statement during a panel discussion: “There can be twelve white blue-eyed blond men in a room and they are going to be diverse too because they’re going to bring a different life experience and life perspective to the conversation.”

Well, talk about your mansplaining, and isn’t that just what you’d expect to hear from some corporate white guy?

Except that this particular executive happens to be a black woman, and of course she’s exactly right. Those twelve individuals may have wildly dissimilar life stories and outlooks, and for that matter you could also choose twelve people of wildly dissimilar ethnicities but nearly identical upbringing and mindset.

If Apple thinks having a diversity of life experiences and background is important in assembling a good team, fine, but why use skin color, national origin, and sex as a proxy for how people grew up and what they believe? That’s stereotyping, and by the way Title VII of the 1964 Civil Rights Act makes it illegal to discriminate on the basis of race, ethnicity, or sex in employment. (I discussed all this a decade ago in testimony before the U.S. Equal Employment Opportunity Commission — see especially parts III and V.)

No matter. The outcry was immediate and loud, and an apology has been issued.

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MLB: No White Men Need Apply -- Major League Baseball recently announced a “Diversity Fellowship Program” that is explicitly limited to “person[s] of color” and women.
What can I say? This is of course worse than the NFL’s Rooney Rule, which is also illegal, but which at least does not bar people on the basis of race from applying for and obtaining a position. This does.

There is no legal justification for this; Title VII of the 1964 Civil Rights Act bans discrimination on the basis of race, ethnicity, and sex in private employment. Bizarrely, MLB’s announcement includes at the end this boilerplate: “Individuals seeking employment at MLB . . . are considered without regards to race, color, . . . national origin, . . . sex . . . ”

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Local Control over Schools at Stake – The Southeastern Legal Foundation and Center for Equal Opportunity have filed an amicus brief with the U.S. Court of Appeals for the Eleventh Circuit,  supporting a group of Gardendale City, Alabama, residents who want to form a new municipal school system but are burdened by a 40-year old desegregation decree, and a federal court who insists on controling the local schools.

This case, Stout v. Jefferson County Board of Education, originated over 50 years ago when Linda Stout sued the Jefferson County school board for racially segregating the school system. Such de jure segregation is of course unconstitutional, and accordingly the court entered an order directing the school system to desegregate. By 1976, the County’s dual system was fully dismantled. 

Fast forward to 2012. Residents of Gardendale City, within the County, began a campaign to raise property taxes to form their own school system, hoping to increase local control over education, improve test scores, and decrease overall size of the system their children attended. They succeeded in raising sufficient funds and in 2014, formed the Gardendale City Board of Education.  But because the federal district court still controls the local school board, the new school board had to seek its permission to operate. The court ultimately allowed the two elementary schools, but not the middle and high schools. Both sides appealed.

SLF and CEO filed their amicus brief to bring one particular issue to the Court’s attention — the inherent violation of federalism that results from continued federal court control over local school boards. The U.S. Supreme Court has, time and time again, indicated that the time for federal court control over an area which is constitutionally reserved to the States has come. Unless there is a constitutional violation that needs to be remedied, federal courts should return control of our children’s education to the local and state governments.

Click here for SLF's and CEO’s 11th Circuit amicus brief.