Last week the Federalist Society’s Regulatory Transparency Project released this paper prepared by its “Race & Sex Working Group” (love that name, and I’m proud to be a member of it). The paper critiques 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.
To its credit, the Trump administration has taken action on the first two, early on revising the Obama administration’s approach on transgender issues, and earlier this month announcing it would rescind the Obama-administration guidance on campus sexual-assault procedures.
Here’s hoping that it will act soon with regard to the third matter, too. CEO board member Jason Riley had an excellent column in the Wall Street Journal last week as well, and the Race & Sex paper goes into more detail about why the Obama administration’s guidance on school discipline and race was bad law and bad policy.
As a legal matter, the way the guidance was promulgated, the use of the “disparate impact” approach in this area at all, and in any event the scope it was given, are all deeply dubious. And as a matter of policy, pressuring school officials to get their racial numbers right when disciplining students will inevitably push them either to discipline, say, Asian-American students who shouldn’t be disciplined or, more likely, not to discipline African-American students who should be.
And who will be hurt most if disruptive or dangerous students are not disciplined? Teachers surely, but even more the rule-abiding students who will now find it harder to learn and, indeed, will now be forced to learn in environments that are downright dangerous. And what is the demographic profile of those students? Right: They are more likely themselves to be African-American and poor.
In sum, jettisoning this third Obama-administration policy will help, not hurt, the cause of racial equal opportunity, and it advances both civil rights and law and order.
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I noted that the second item on the Federalist Society working group list was the Education Department’s guidance on campus sexual assaults. I had earlier written a post for National Review Online for that, too, where I was following up on CEO board member (they’re everywhere!) John J. Miller’s timely post, regarding Secretary DeVos’s welcome speech earlier this month. That speech was welcome because it announced a major change in the Obama-era Education Department policy on how to deal with accusations of sexual harassment and assault on campus.
For more on this, I’ll mention that Hans Bader of the Competitive Enterprise Institute used to work at the department’s Office for Civil Rights, and he writes frequently and always incisively about this issue in particular. So his take on the secretary’s speech is important reading. Hans is also a member of the Federalist Society working group on Sex & Race.
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Whatever you think of ESPN’s Jemele Hill and the network’s reaction to her recent anti-Trump tweets, it was wrong of ESPN to limit consideration of her replacement to those who happen to share her skin color, as this news article suggests. That’s offensive — and in clear violation of Title VII of the 1964 Civil Rights Act, which forbids employment discrimination on the basis of race. Hat tip to CEO’s executive director, Rudy Gersten.
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Finally, a follow-up on a couple of my recent emails. I mentioned that the Center for Equal Opportunity is delighted to welcome aboard as a senior fellow Terry Eastland, a distinguished journalist, editor, and expert on, among other things, the intersection of race, ethnicity, and law. And I criticized the announcement by Secretary of State Rex Tillerson of a “Rooney Rule” for appointments to ambassador at the State Department. Putting the two together, I thought I’d treat you to this post by Terry on the Tillerson announcement, which was posted by the Weekly Standard, where Terry is a contributing editor. Enjoy!
Why Does Rex Tillerson Want Affirmative Action for Ambassadors?
Tillerson says the State Department needs to be more diverse and that there needs to be a Rooney Rule for ambassadorships.
Secretary of State Rex Tillerson was so disturbed by the clash of protesters in Charlottesville that he made a policy decision he may have to reverse: In a speech at the State Department on August 19, he repudiated hatred and racism before addressing what he called “a great diversity gap” in employment and ambassadorships. He meant that there are too few employees and ambassadors who are “diverse” on account of their race, or ethnicity, or sex, or sexual orientation. He did not say how many of this or that diversity group the department needed among its employees or ambassadors to be sufficiently diverse. Tillerson’s point was simply that there must be more.
How to get more? Tillerson said there would be changes in the process used to recruit and hire employees and choose ambassadorships. The most important of those changes concerns ambassador selection.
“Every time we have an opening for an ambassador position, at least one of the candidates must be a minority candidate,” he said. Tillerson seemed to mean candidates who are black and Hispanic, but not Asian or other racial and ethnic minorities. The new policy could result in discrimination against a non-preferred minority candidate. Necessarily it will result in discrimination against someone lacking the “right” race or ethnicity but who is better qualified than the diversity candidate included in the competition for a particular ambassadorship.
Federal civil rights law and the Constitution would not seem to permit racial preferences in the selection of ambassadors and department employees. Someone needs to tell that to Tillerson. Perhaps Attorney General Sessions could do so.
Attorneys general, relying on the Justice Department’s Office of Legal Counsel, have long advised presidents and their administrations on legal questions raised by new policies. Here’s one that needs the AG’s immediate attention, before Tillerson’s bean-counting gets out of hand.
Related posts:
TESTIMONY OF ROGER CLEGG, PRESIDENT AND GENERAL COUNSEL, CENTER FOR EQUAL OPPORTUNITY BEFORE THE U.S. COMMISSION ON CIVIL RIGHTS REGARDING THE PROPOSED EMPLOYMENT NON-DISCRIMINATION ACTDid Juan Williams libel LU’s Hans Bader?
Disparate Impact Delenda EstPoliticized external review panels as unguided “diversity” missiles: California university administrators remain ultra-slow learners