CEO’s Activities Report 2015 | Center for Equal Opportunity

Dear CEO Supporter,

We wanted to bring you up to speed on all of the important work we are doing at the Center for Equal Opportunity. Here is CEO’s activities report for the last year:

Areas of CEO Interest

Opposing Racial and Ethnic Preferences. As America becomes an increasingly multiethnic, multiracial society—as, indeed, individual Americans become increasingly multiethnic and multiracial—a legal regime that sorts people by skin color and what country their ancestors came from, and treats some better and others worse on this basis, becomes increasingly untenable.

Fortunately, the principle of colorblindness is frequently enshrined in the laws of our land. While the courts have, unconscionably, carved out exceptions to these laws, they are only (limited) exceptions. Thus, an important part of what CEO does is act as a watchdog: We make sure that the laws on the books are followed, and that no American is treated differently or preferentially because of race or national origin. We have found that simply contacting an agency or organization that is discriminating—explaining the legal problem, asking that the policy be changed, and pointedly noting that if it is not, there will be a potentially costly and embarrassing legal violation—will more often than not end the discrimination.

Consider, to give just one example, the case of racially and ethnically exclusive programs at our universities. These include summer programs, internships, financial aid and scholarships, and other opportunities for which an absolute criterion of eligibility has been the applicant’s skin color or his ancestors’ country of origin. CEO has contacted hundreds of schools about such programs, and they have almost all agreed to change them. So successful have our efforts been that there is a growing consensus among schools that this change should take place. National publications such as the Wall Street Journal have reported on—and congratulated us on—our efforts.

We have done and are doing similar work against the use of racial preferences in all areas where they appear: university admissions (including playing an important role in Fisher v. University of Texas, discussed below), K-12 education, employment, public contracting, and voting (i.e., racial gerrymandering). We confront those discriminating directly, file administrative complaints, formal comments and amicus briefs, testify before Congress, and publicize what we find to bring public and political pressure to bear.

Supporting Assimilation. As Congress has worked sporadically on immigration reform, the Center for Equal Opportunity has been working to ensure that this process includes focus on a neglected element: assimilation. In this regard, we have already made some progress. We have done so by meeting with officials and discussing in a variety of media our ideas for improving assimilation. CEO’s Roger Clegg has circulated his ideas in written form to many of these officials, testified before Congress, and spoken on this topic at many universities and in other venues over the past few years. We are now working with other conservatives to inject this issue into the presidential campaign.

“Disparate Impact” and other CEO Areas of Interest. CEO also weighs in aggressively on other civil-rights issues of interest to conservatives. On hot button issues involving race, from Ferguson to Charleston, CEO is there to inject some sanity against the out-of-control demagoguery that the Left loves to use regarding race relations. No one opposes the ubiquitous race card more vigorously than CEO.

We steadfastly oppose the “disparate impact” approach to civil-rights enforcement (that is, claiming violations based on racial disproportions rather than actual discrimination), and have filed amicus briefs, met with government officials, and advised on and facilitated filings by like-minded organizations on this issue. This is closely related to our opposition to racial preferences, since disparate-impact theory drives potential defendants to adopt racial quotas, as was illustrated in the 2009 New Haven firefighters case before the Supreme Court. Alas, the Obama administration has ramped up the federal government’s use of this approach—but CEO has played a key role in bringing these abuses to the general public’s attention (see, e.g., enclosed Wall Street Journal op-ed).

CEO president and general counsel Roger Clegg is also one of the few legal experts who has spoken out against the concerted efforts of the Left to allow felons—and not just those who have served their sentences, but those who are still on parole or probation or even still in prison—to vote. Mr. Clegg has written widely on the issue, testified before Congress, discussed the topic on many radio and television shows, and spoken at many law schools. CEO also helped write an amicus brief that was filed on behalf of it and the family of a murdered police officer with the Second Circuit (we won), and in a similar case before the en banc Ninth Circuit (we won again). Mr. Clegg has recently just finished coauthoring a paper on this subject that has been published and distributed by the Heritage Foundation.

Finally, the Center for Equal Opportunity plays an important role in disseminating information on our issues to other conservative groups. 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.

Examples of the Current Work of CEO

Monitoring the Executive Branch. A current top priority of CEO is monitoring, publicizing, and challenging the Obama administration’s use and support of race-based policies. CEO is monitoring not only news stories and government websites but also the Federal Register, the public filings of the administration (particularly the Justice Department’s civil rights division), the introduction of federal bills, and nominees to the both the executive branch and the judiciary. When we uncover instances of racial preference or other race-based policies, we publicize those policies and then lead and coordinate opposition to them in the court of public opinion and in the courts themselves.

Supreme Court Litigation. One prominent area of our activity over the years has been in Supreme Court litigation. CEO has been heavily involved in a number of cases that have been decided by the Supreme Court. For example:

1)Fisher v. University of Texas – This case challenging racial preferences in student admissions relies 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 positive ruling, we filed dozens of FOIA requests to determine if universities were meeting the criteria set out in Justice Kennedy’s opinion. Last summer, 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. This summer, the Supreme Court granted review again. It’s welcome news that the Court recognizes the continued importance of the issue of racial preferences in university admissions, and the decision to grant review is an implicit recognition that the court of appeals’ decision allowing this discrimination is unpersuasive. Once again, CEO had joined and helped write an amicus brief successfully urging the Court to take the case—stressing the non-responsiveness of universities to Fisher I that our FOIA requests had uncovered, as well as our studies documenting the continued (often increasingly) mechanical and heavy weight given race in university admission—and this fall we joined and help write another brief (discussed in a Chronicle of Higher Education article) now that the review has been granted. We are working with Ms. Fisher’s lawyers, scheduled to participate in a moot court, speaking and writing about the case in the court of public opinion, and doing media “truth squad” work in the run-up to Supreme Court oral argument on December 9.

2) Schuette v. By Any Means Necessary (BAMN) – The Center for Equal Opportunity succeeded in helping persuade the Supreme Court to hear—and rule correctly in—this important civil-rights case last year. The full U.S. Court of Appeals for the Sixth Circuit had held that Michigan’s anti-preference Proposal 2 violates the U.S. Constitution’s Equal Protection Clause. CEO was involved in this case for a long time, first in the lower courts and then in the Supreme Court. In fact, we helped get Proposal 2 passed in the first place, by releasing studies that documented how heavily racial and ethnic preferences were being used at Michigan public universities. We joined and helped write a brief urging the Court to take the case, and joined and helped write another brief once the case was on the Court’s docket. We participated in a moot court for the State of Michigan counsel and provided comments on the state’s brief. And we won: The Court upheld Proposal 2.

3) Texas Department of Housing and Community Affairs v. Inclusive Communities Project – This Supreme Court case in which CEO was involved last term presented the question whether “disparate impact” causes of action may be brought under the Fair Housing Act. For years, we had pressed the Supreme Court to rule that such cases may not be brought; this approach would hold defendants liable for policies that have disproportionate racial effects, even if there is no difference in racial treatment in the way a policy is written or applied, and no racial intent in the reason for its use. Thus, for example, a landlord might be held liable for refusing to rent to people with a record of violent crime if more individuals of one race than another had such criminal convictions. CEO opposes this approach in all areas, and the Court had never resolved the issue for housing. The advocates of this misguided policy were able to keep the issue away from the Court for years, but finally this term the case was decided. We are disappointed that Justice Kennedy’s opinion did not flatly reject the use of the “disparate impact” approach under the Fair Housing Act. But in the latter part of the opinion he puts many limits on the use of that approach, and so the law is actually better now than it was before the Court decided the case. CEO is continuing to urge challenges to the use of the disparate-impact approach in other litigation—in housing and in other areas, and has discussed how to use the better parts of Justice Kennedy’s opinion—and we are discussing legislation that can be passed to end the misguided “disparate impact” approach, too.

4) Shelby County v. Holder – In this case, the Supreme Court struck down the coverage formula of Section 5 of the Voting Rights Act; this should end much of the racial gerrymandering that was a product of Section 5. CEO again played an important role, filing amicus briefs at both the petition stage and on the merits, participating in the coordination of other amicus briefs, in addition to CEO chairman Linda Chavez and CEO president Roger Clegg testifying before Congress against re-enacting Section 5 in the first place. CEO is also working to inform the public about why Congress should not undo the good work the Supreme Court did in this case.

5) Other Court Cases – CEO has also joined amicus briefs in a number of other recent cases in the Supreme Court or in lower federal courts, including Arizona v. Intertribal Council of Arizona (defending Arizona’s requirement of proof of U.S. citizenship when registering to vote) and EEOC v. Kaplan (seeking to limit the EEOC’s disparate-impact enforcement policy). We are now working with Pacific Legal Foundation on its cert petition in a case challenging racial preferences in employment, and in a number of cases involving racial preferences in government contracting.

Studies of Racial Discrimination at College and Universities – Another important area of our work is the dozens of studies the Center for Equal Opportunity has published over the years that document the heavy weight given to race and ethnicity in school admissions. By using the universities’ own admissions data, obtained through freedom-of-information requests, CEO has exposed the use of racial preferences in college admissions. Perhaps the most noteworthy of these studies are those that were published just prior to the vote on ballot initiatives to ban such discrimination in California, Washington, Michigan, Nebraska, Arizona, and, most recently, Oklahoma. In all six states, the initiatives passed (we were also active in Colorado, the one state where an initiative failed, albeit narrowly).

The release of our Wisconsin studies prompted university officials to instigate student protests resulting in a lawless mob effort to disrupt our press conference. Our opponents’ efforts backfired, however, as we received excellent national and local media coverage, and an invitation to return to Madison the following month and testify before the state assembly’s higher education committee, which we of course happily accepted and which enabled us to confront the university’s witnesses there directly. We continue to collect data, with an eye on future studies. Our current target: The University of North Carolina-Chapel Hill, in light of the admissions discrimination lawsuit that has been filed against it.

Ending Racially Exclusive Scholarships – As noted earlier, the Center for Equal Opportunity has ended racially exclusive scholarships and other programs at dozens of universities all over the country. Our initial successes were with MIT and Princeton; Harvard, Yale, and dozens of other have followed. We have done so by using university websites to identify such programs, contacting the schools, pointing out the illegality of the programs, and when necessary, filing complaints with the Department of Education. For these programs, students of all racial groups may now apply. While DoEd is generally no longer an ally, we continue to have successes in opening up their programs.

Ending Racial Discrimination in Jobs and Contracting – Likewise, the Center for Equal Opportunity has ended racially exclusive job opportunities all over the country. One widely publicized example involved graduate teaching positions at Southern Illinois University, where our efforts resulted in an end to the program and a front-page story in the New York Times. We have successfully challenged other such programs as well, requiring that they be made open to applicants of any race. Our efforts will continue here, too.

Frequently federal, state, and local government agencies give or consider giving preferences in the award of public contracts on the basis or race, ethnicity, and sex. The Center for Equal Opportunity has confronted the agencies and successfully persuaded them not to engage in such discrimination. These efforts will continue. For example, we use the Internet to find local news stories reporting that city councils or county commissions are considering such programs; when we do, we immediately email to the relevant officials a customized memorandum that describes the legal and policy objections to these programs (and notes recent decisions holding officials personally liable when they have authorized this discrimination without a solid legal predicate). As a tactical matter, we have asked Pacific Legal Foundation to join us in these emails, since it is a litigating organization and, thus, especially intimidating; it has happily agreed. We have also drafted a model brief (with PLF) and posted it on PLF’s website for potential litigants to use. And we are working with congressional staff to request a GAO study on federal contracting preferences.

Other Efforts in Education – We also work toward greater transparency when racial preferences are being used. While the Center for Equal Opportunity opposes the use of race and ethnicity in university admissions, for example, obviously there are those who disagree—but who can favor secret racial and ethnic preferences in public or federally-funded university programs? Accordingly, we have drafted and publicized model legislation that requires the disclosure of such preferences, as well as documentation that, where preferences are being used, they comply with Supreme Court limitations on their use.

We have urged the Justice Department to ask federal courts to terminate desegregation decrees in place against school districts that have already fully desegregated; these decrees no longer serve any purpose except to require needless busing and thwart initiatives that would allow parents (of all colors) greater choice in removing their children from failing schools. We have also written directly to the federal judges involved. When this project began, there were close to 900 school districts under supervision; now there are under 200. We sent out a recent batch of letters during this administration, and we will continue to follow up on them. USA Today has published our op-ed on this topic.

The Court of Public Opinion – Finally, a word about the court of public opinion, where CEO devotes so much of its efforts. It is hard to quantify public attitudes, and even harder to prove the extent to which they have been affected by one organization. But CEO has over the years been one of the very few organizations tirelessly pressing these three ideas, among others: that racial and ethnic preferences are wrong, that it is illegitimacy rates and not discrimination that are the principal hurdle now for the African American community (and that contribute so heavily to the crime disparities now in the news), and that assimilation is not a dirty word and must be included in any discussion of immigration reform. In our view, the tide of public opinion is now running in our favor on all three issues, and we think it is fair for CEO to claim some of the credit. We also believe that the public is becoming more and more aware
of how ridiculous the “disparate impact” approach to civil rights enforcement is. Accordingly, speaking out on our issues will remain a top CEO priority.

CEO has had opinion pieces published in, among others, the following: Wall Street Journal, USA Today, New York Times, Washington Post, Los Angeles Times, National Review, Washington Times, Chronicle of Higher Education, Engage, Minding the Campus, National Association of Scholars website, Clarion Call, The Freeman, and SCOTUS Blog. This is in addition to Linda’s syndicated column and her blogging for Commentary magazine’s “Contentions” and Mr. Clegg’s blogging for National Review Online. Finally, Mr. Clegg has recently coauthored four papers that were then published and disturbed by the Heritage Foundation on civil rights issues.

We have testified many times (at their invitation) before Congress and the U.S. Commission on Civil Rights. We have spoken at scores of campuses, often on multiple occasions, including: Harvard, Yale, Vermont Law School, University of St. Thomas, William Mitchell College of Law, University of Chicago, Samford University, Alabama, William & Mary, Northeastern, Northwestern, North Dakota, Duke, Temple, Virginia, Indiana, Notre Dame, Michigan, Rutgers, Washington & Lee, University of Tulsa, Ole Miss, Ave Maria, Florida International, Rutgers, Kansas, University of Missouri-Kansas City, Penn State, University of Richmond, Florida Coastal, Florida, Seton Hall, Ohio State, Seton Hall, Tulane, Loyola in New Orleans, Wisconsin, Emory, Georgia State, Mercer, University of the District of Columbia, George Mason, Columbia, Widener, Phoenix University School of Law, Arizona, American University, Western New England College of Law, Samford University, and Faulkner University.

We also spoke to the National Association of Mutual Insurance Companies, the Congressional Black Caucus’s Issues Forum, the American Bar Association, the Joint Center for Political and Economic Studies, multiple times at the Federalist Society’s annual convention, the Cato Institute, and the Heritage Foundation’s Legal Strategy Forum, and the U.S. Commission on Civil Rights’s national conference; for the Federalist Society, we have also done podcasts on numerous topics, including disparate impact, the Supreme Court’s decision in Fisher v. University of Texas, felon voting, the Voting Rights Act, the “diversity” provisions of the Dodd-Frank bill, and government contracting racial preferences. We will also be participating in the Intelligence Squared/National Constitution Center debate on racial preferences in university admissions on December 3 in New York City.

Roger Clegg

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