CEO to Cities: Don’t Do It! | Center for Equal Opportunity

The Center for Equal Opportunity has been particularly active in recent months with its ongoing project of warning state and local governments (especially cities and counties) not to start down the road of awarding government contracts with an eye on race, ethnicity, and sex. Here’s the sort of memorandum (citations and links omitted) we send to the relevant officials, most recently in Georgia, North Carolina, Florida, and Virginia:

We are writing with regard to a recent news story, which was brought to our attention this week and which discusses the City’s minority contracting efforts.

We urge the City to be race-neutral in this program. We also urge the City to continue to resist calls that it “initiate a disparity study.” Not only will such a study be very expensive, but the only reason to undertake it would be to try to justify legally something that the City should not want to do, and indeed it would probably not offer a sufficient legal justification anyway. What’s more, disparity studies are frequently revealed to be defective, and even fraudulent. When this happens, the city’s (and taxpayers’) money has been wasted, and of course then the study is of no legal or policy use either.

To elaborate: The City can undertake race-neutral measures to ensure that the bidding process is fair and open without a disparity study. It can, that is, 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. A disparity study is needed, supposedly, if the City wants to have a legal justification for non-neutral measures.

But the City should not want to engage in such preferential treatment on the basis of race, ethnicity, and sex, even if it had a legal justification for it, since such discrimination is unfair and divisive; it breeds corruption; and it costs the taxpayers and businesses money to award a contract to someone other than the lowest bidder. What’s more, it is very doubtful that, in 2017, a disparity study would justify preferential policies, since there will always be nonpreferential ways to remedy any disparities that are found.

The attached document [a redacted version of a memorandum we sent to another city in nearby state that was considering this issue] contains additional discussion of, especially, the relevant legal points. See also this model brief our organization has prepared and posted for those wishing to challenge preferential contracting programs.

Thank you very much for your attention to our concerns.

We’re happy to say that we’ve met with significant success in firing such warning shots.

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“Trumplash”? — Suppose someone had told you that the United States would have a president who, in the same week, would nominate the stellar conservative Neil Gorsuch to the Supreme Court and say that there’s moral equivalence between our country and state killers like Vladimir Putin. I fear we’re going to have to get used to this discombobulation. Call it “Trumplash” (Trump + whiplash).

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Speaking Truth to Power — The Left loves the phrase “speaking truth to power” and claims it every time some disgruntled professor writes a letter to the editor criticizing, well, anyone. So of course the acting attorney general, Sally Yates, was celebrated when she refused to defend a presidential executive order she didn’t like and as a result was then fired by President Trump.

Of course, her refusal was completely costless — indeed, it was a great career move. She had only a day or two left at her job anyway, and her early exit ensured that she would be forever loved by everyone who would ever be in a position to help her in the future.

A really brave person would be willing to criticize the president when he could actually withhold something from you that you wanted. For most lawyers, and nearly all judges, that something would be an appointment to the Supreme Court. Does anyone think it beyond the pale that President Trump might change his mind about a Supreme Court nominee who did something to displease him?

Disgruntled professors and Sally Yates cannot hold a candle to Neil Gorsuch.

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The Amazing Justice Sotomayor — Speaking of Supreme Court justices, Sonia Sotomayor recently spoke at the University of Michigan, and was asked by a moderator “what a university will need to look like in the years ahead to be inclusive and innovative.” “It’s going to look a lot like Michigan,” she said to applause, “but with even greater diversity.”

That’s amazing. The Center for Equal Opportunity fights for the principle of racial and ethnic nondiscrimination in university admissions: Admit the best qualified, without regard to skin color or what country someone’s ancestors came from. And we frequently hear the bogus and opposing claim that public universities should “look like the state” — that is, that there should be some sort of quota to ensure that the percentage of each racial and ethnic group in the school approximate the percentage of that group in the state’s general population. There’s no plausible legal, moral, or policy justification for such a quota, but we’ve gotten used to hearing it. Yet here is Justice Sotomayor doubling down: Apparently she thinks that some groups, presumably racial and ethnic minorities, should be overrepresented at public universities. As I said: amazing.

But wait, there’s more: “When you look at the number of African-Americans at the University of Michigan — um, there’s a real problem,” she said. “And why is diversity important? … For me, the answer is quite simple: It’s because until we reach that equality in education, we can’t reach equality in the larger society. It starts here and it ends here.”

What is she talking about? She seems to be saying that, only by having quotas in higher education, can we magically end racial disparities everywhere in society. Sorry, Justice Sotomayor, but it doesn’t work that way. In fact, you have it backwards: The reason that some groups don’t do as well, statistically, in competitive admissions is because some groups are held back, disproportionately, by cultural failures that begin long before college age. I’m talking, in particular, about out-of-wedlock birthrates and the belief that academic excellence is “acting white.”

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Recommended Reading — Finally, let me put in a plug for a new book by Stuart Taylor, Jr. (a frequent CEO ally in our opposition to racial preferences in university admissions) and Professor KC Johnson, The Campus Rape Frenzy: The Attack on Due Process at America’s Universities. The book was recently discussed by the authors on this Federalist Society podcast (I make an appearance at the 48:10–50:35 mark).

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