Your Watchdog at Work | Center for Equal Opportunity

Every day we review the Federal Register—a daily publication of proposed rules, regulations, and the like from federal agencies—for items that violate principles of colorblind equal opportunity. It’s rare that we don’t find something that provides grist for our mills here, and here’s an example of a formal comment I sent this week on a recent doozy:

We are writing to comment on the May 25, 2011 Federal Register notice (76 FR 30280) re “Proposed Rules FARM CREDIT ADMINISTRATION (FCA)” // “General Provisions; Operating and Strategic Business Planning.”

The recurrent theme in the rules is a desire for “diversity and inclusion.” The problem is that mandating “diversity” will inevitably push decisionmakers to make their decisions with an eye on race, ethnicity, and sex and toward achieving particular racial, ethnic, and gender outcomes. Such discrimination and preference is illegal, divisive, unfair, and inefficient. The entire draft should therefore be rewritten with the focus on “nondiscriminatory inclusion” instead. In addition—and even if this rewriting is not done—it needs to be spelled out that nothing in the rules authorizes or allows weighing race, ethnicity, or sex in any decision by the FCA, its employees, or those with whom it works.

To elaborate briefly: It is generally unconstitutional for the government to show favoritism or even use classifications based on race, ethnicity, or sex. See Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995) (“all racial classifications … must be analyzed by a reviewing court under strict scrutiny”); Mississippi University for Women v. Hogan, 458 U.S. 718 (1982) (gender classifications require an “exceedingly persuasive justification”). Indeed, such classifications and favoritism are “presumptively invalid” (see Personnel Administrator v. Feeney, 442 U.S. 256 (1979)). Title VI of the 1964 Civil Rights Act, 42 U.S.C. 2000d, which covers federally funded programs, is coextensive in its prohibitions of racial and ethnic discrimination with the Constitution, as is 42 U.S.C. 1981, which applies to all contracts, including procurement and employment contracts. See Gratz v. Bollinger, 539 U.S. 244 (2003). Discrimination on the basis of race, ethnicity, and sex in employment, including federal employment, is also contrary to Title VII of the 1964 Civil Rights Act, 42 U.S.C. 2000e et seq., and the reasons why a desire for “diversity” does not change this fact—as well as discussion of where the line ought to be drawn between lawful and unlawful efforts at “inclusion”—is elaborated on in the testimony (in two parts) which we delivered to the U.S. Equal Employment Opportunity Commission, which can be viewed at this link and which we respectfully ask be included in the record as part of our comment today: https://ceousa.org/content/blogcategory/56/85/

Thank you very much for your attention to our concerns.

We’ve done surprisingly well with our formal comments, by the way, so keep your fingers crossed.

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And here’s our response to a front-page news story in the Washington Post this week:

Re “In Md., a racial element to congressional redistricting” (July 25): It is ironic and sad that organizations claiming the mantle of civil rights should advocate racial gerrymandering and the racial segregation of voting districts. But that is exactly what they are advocating, in order to ensure racial proportionality among elected representatives.

Such gerrymandering has been struck down as unconstitutional by the Supreme Court in a number of decisions, and such proportionality is explicitly NOT required by the Voting Rights Act. Moreover, the racial segregation of voting districts is not only bad law but bad policy. It encourages racial balkanization and identity politics, contributes to a lack of competitiveness in elections, polarizes districts (both racially and ideologically), insulates Republican candidates and incumbents from minority voters and issues of particular interest to them—to the detriment of both Republicans and minority communities—and, conversely, insulates minority candidates and incumbents from white voters (making it harder for those politicians to run for statewide or other larger-jurisdiction positions).

And why is it that whites must be represented by whites and blacks by blacks anyhow? As Chief Justice John Roberts wrote in one recent voting case, “It is a sordid business, this divvying us up by race.”

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Now here’s a question for you: Should the federal government tell private employers to ignore the arrest and conviction records of applicants and employees?

That will be the underlying question at a public meeting this week, when the U.S. Equal Employment Opportunity Commission, which focuses principally on private-sector employment, will examine the “employment barriers faced by individuals with arrest and conviction records.“ Here’s the agency’s press release. The legal hook will be that these “employment barriers” have a disparate impact on the basis of race and ethnicity. I kid you not.

Finally, note that the Obama administration has the same misgivings about school discipline when it results in racial and ethnic “imbalances.” See the recent joint Department of Justice/Department of Education announcement here and my earlier op-ed in The Washington Times here.

Of course, when students who ought to be disciplined aren’t, the individuals who suffer the most are the other students in that school. They might be bullied by the misbehaving students or, even if they aren’t, will learn less when their classrooms are being disrupted. And those students are likely to belong to the same racial and ethnic minority groups as the miscreants. But somehow the well-behaved students are always forgotten by the Left.

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