The Center for Equal Opportunity Drafts Two Model Bills

FIRST MODEL BILL (antidiscrimination based on California’s Proposition 209)

CIVIL RIGHTS ACT OF 2014

(a) The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.

(b) This section shall apply only to action taken after the section’s effective date.

(c) Nothing in this section shall be interpreted as prohibiting bona fide qualifications based on sex which are reasonably necessary to the normal operation of public employment, public education, or public contracting.

(d) Nothing in this section shall be interpreted as invalidating any court order or consent decree which is in force as of the effective date of this section.

(e) Nothing in this section shall be interpreted as prohibiting action which must be taken to establish or maintain eligibility for any federal program, where ineligibility would result in a loss of federal funds to the state.

(f) For the purposes of this section, “state” shall include, but not necessarily be limited to, the state itself, any city, county, city and county, public university system, including any state university or college, community college district, school district, special district, or any other political subdivision or governmental instrumentality of or within the state.

(g) The remedies available for violations of this section shall be the same, regardless of the injured party’s race, sex, color, ethnicity, or national origin, as are otherwise available for violations of then-existing state antidiscrimination law.

(h) This section shall be self-executing. If any part or parts of this section are found to be in conflict with federal law or the United State Constitution, the section shall be implemented to the maximum extent that federal law and the United States Constitution permit. Any provision held invalid shall be severable from the remaining portions of this section.

SECOND MODEL BILL (requiring disclosure of preferential policies)

SUNSHINE CIVIL-RIGHTS ACT OF 2014

Findings: Citizens and taxpayers of the State of ____________ have a right to know whether its public institutions of higher education are treating student applications differently depending on the students’ race, color, ethnicity, or national origin, and, if so, the way in which these factors are weighed and the consequences to the students themselves of doing so. Moreover, the United States Supreme Court has recently set out limitations on such considerations of race, color, ethnicity, and national origin, and it is part of the oversight duty of the State Legislature to ensure that those limitations are being observed and the State is not exposed to expensive litigation.

Section 1. Every academic year, each public institution of higher education shall provide to the State Legislature a report regarding its student admissions process, and this report shall be made publicly available.

Section 2. This report shall begin with a statement of whether race, color, ethnicity, or national origin is considered in the student admissions process (if different departments within the institution have separate admission processes and consider race, color, ethnicity, and national origin differently, then the report shall provide the information required by this report for each department separately).

Section 3. If race, color, ethnicity, or national origin is considered in the student admission process, then the public institution of higher education shall also provide the following information:

the groups for which membership is considered a plus factor or a minus factor and, in addition, how membership in a group is determined for individual students;
how group membership is considered, including the weight given to such consideration and whether targets, goals, or quotas are used;
why group membership is considered (including the determination of the critical-mass level and relationship to the particular institution’s educational mission with respect to the diversity rationale);
what consideration has been given to nonpreference alternatives as a means for achieving the same goals for which group membership is considered;
how frequently the need to consider group membership is reassessed and how that reassessment is conducted;
factors other than race, color, ethnicity, or national origin that are collected in the admissions process. Where those factors include grades or class rank in high school, scores on standardized tests (including the ACT and SAT), legacy status, sex, state residency, or other quantifiable criteria, then all raw admissions data for applicants regarding these factors, along with the applicants’ race, color, ethnicity, and national origin and the admissions decision made by the school regarding that applicant, shall accompany the report in computer-readable form, with the name of individual students redacted but with appropriate links, so that it is possible for the Legislature or other interested persons to determine through statistical analysis the weight being given to race, color, ethnicity, and national origin relative to other factors; and
analysis—and also the underlying data needed to perform an analysis—of whether there is a correlation (i) between membership in a group favored on account of race, color, ethnicity, or national origin and the likelihood of enrollment in a remediation program, relative to membership in other groups; (ii) between such membership and graduation rates, relative to membership in other groups; and (iii) between such membership and the likelihood of defaulting on education loans, relative to membership in other groups.

Section 4. Nothing in this act shall be construed to allow or permit preference or discrimination on the basis of race, color, ethnicity, or national origin.

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