We Need More Bills Like This | Center for Equal Opportunity

A bill banning preferential treatment on the basis of race, ethnicity, and sex in public contracting, education, and employment — a.k.a. “affirmative action” — has advanced through the Idaho legislature’s relevant house committee.

The heart of the bill is straightforward and should not (in a sane world) be controversial:

“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.”
Whatever finally happens in Idaho, here’s hoping that state legislators in more states follow Idaho representative Heather Scott in proposing such a bill. It’s precisely in line with state constitutional enactments in California, Washington, Michigan, Arizona, Nebraska, and Oklahoma, as well as laws (less precisely) in Florida and New Hampshire.

Too bad the federal legislature hasn’t done something like this. By the way, I’ve co-authored Heritage Foundation papers on this topic with proposed language for both state and federal bills.

***

At the other extreme, a bad energy bill has been proposed in Virginia. Here’s an excellent analysis by the Center for Equal Opportunity’s friend Hans Bader.

***

As noted above, I’ve co-authored Heritage Foundation papers on antipreference legislation at both the federal and state levels. For the balance of this email, I’ll set out some lightly-edited excerpts. Here’s hoping we see more legislative action in this area, in statehouses and in Congress.
Banning Racial Preferences: Model Federal Bill
The most straightforward way Congress could address the problem is by banning racial and other preferences in public employment, education, and contracting, as well as in other federally funded programs and in the civil-rights protections that the federal government affords. Federal law frequently states that the government may not discriminate based on race; thus, Congress could clarify these existing laws, which judges and bureaucrats have distorted, by including a ban on the use of preferences.

Congress should also repeal any existing provisions that authorize preferences or other forms of discrimination, ideally at the same time the new law is passed. Barring that, however, the following language should be added to the model bill: “All statutes, regulations, and agency practices shall be construed in a manner consistent with this law, and provisions that might be read to authorize preferences or discrimination are hereby repealed or amended to authorize only consideration of factors other than race, color, ethnicity, or national origin.”
Civil Rights Act of 2020
Section 1. No agency of the federal government shall discriminate or grant preferences on the basis of race, color, or national origin in employment, education, or contracting, nor require any other person to do so.
Section 2. No instrumentality of any state shall discriminate or grant preferences on the basis of race, color, or national origin in employment, education, or contracting, nor require any other person to do so.
Section 3. 42 U.S.C. § 2000d shall be amended by inserting the phrase “or granted any preference” after the word “discrimination.”
Section 4. No person for whom it is otherwise unlawful under federal law to discriminate on the basis of race, color, or national origin shall grant preferences on the basis of race, color, or national origin, and the civil and criminal penalties for doing so shall be the same as for engaging in discrimination on the basis of race, color, or national origin.

State Model Bill: Antidiscrimination Statute Based on California’s Proposition 209

Six states have passed ballot initiatives to amend their state constitutions and prohibit state and local governments from discriminating in public employment, contracting, and education (including public universities) on the basis of race, ethnicity, or sex: California (1996), Washington (1998), Michigan (2006), Nebraska (2008), Arizona (2010), and Oklahoma (2012).

California’s Proposition 209, the California Civil Rights Initiative, was adopted by a 54 percent to 46 percent margin of nearly 9 million voters. Both the California Supreme Court and the Ninth Circuit Court of Appeals upheld this initiative, rejecting claims that it violated equal protection principles. The Ninth Circuit held that there was simply no doubt that Proposition 209 was constitutional since the central purpose of the Equal Protection Clause is preventing official conduct that discriminates on the basis of race. The court also found that “the Equal Protection Clause is not violated by the mere repeal of race-related legislation or policies that were not required by the Federal Constitution in the first place.”

And subsequently the United States Supreme Court reached the same conclusion when Michigan’s similar law was challenged.

In other words, states are not required to maintain affirmative action or preference programs once they have been put in place and can outlaw all discriminatory treatment. Such action helps achieve the ultimate goal of the Equal Protection Clause: “to do away with all governmentally imposed discrimination.”

The voters of every state that has a ballot referendum or initiative process should follow suit and consider passing a state constitutional ban on discrimination by state and local governments. At the very least, state legislatures should consider passing a statute that accomplishes the same goal. (That’s what Idaho is doing, as discussed above.)
The model bill that follows is based on the language the aforementioned states used in their ballot initiatives, which has proven to be effective, workable, and resistant to court challenge:
Civil Rights Act of 2020

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.
This section shall apply only to action taken after the section’s effective date.
Nothing in this section shall be interpreted as prohibiting bona fide qualifications based on sex that are reasonably necessary to the normal operation of public employment, public education, or public contracting.
Nothing in this section shall be interpreted as invalidating any court order or consent decree that is in force as of the effective date of this section.
Nothing in this section shall be interpreted as prohibiting action that 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.
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.
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.
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.

Model Bill Requiring Disclosure of Preferential Policies

As long as university officials take race and similar classifications into account in admissions decisions, a bill requiring publication of the use of such preferences is necessary. So another approach would be a federal law that requires universities that receive federal funding to report annually in detail on whether and how race, color, and national origin factor into the student admissions process; likewise, state law could have essentially identical reporting requirements for at least public universities in a given state.

The Supreme Court has upheld the use of race to achieve the “educational benefits of a more diverse student body” as constitutionally permissible, at least for now, subject to numerous restrictions. Even if some insist that universities should continue to practice racial discrimination in admissions, it should not be done secretly and without taking pains to satisfy the Supreme Court’s requirements.

The U.S. Commission on Civil Rights endorsed this approach, including “sunshine” legislation, as a recommendation to the President and Congress in a 2006 report. Likewise, similar legislation has been introduced in Congress that would require universities that receive federal financial assistance to disclose data to the U.S. Department of Education on how race, color, and national origin factor into admissions decisions. As Supreme Court Justice Louis D. Brandeis once said, sunshine is “the best of disinfectants.”
Racial and Ethnic Preference Disclosure Act
Findings: (a) Title VI of the Civil Rights Act of 1964 forbids discrimination on the basis of race, color, or national origin by federally funded institutions, which includes nearly all colleges and universities. The United States Supreme Court has set out limitations on such considerations of race, color, and national origin, and it is important to ensure that these limitations are followed. The best way to do this is by requiring schools to make public their use of race, color, and national origin so that federal and state enforcement agencies and private attorneys general can monitor the schools.

(b) Citizens and taxpayers have a right to know whether federally [or state] funded institutions of higher education are treating student applications differently depending on the students’ race, color, or national origin and, if so, the way in which these factors are weighed and the consequences to the students themselves of doing so.

Section 1. Every academic year, each institution of higher education that receives federal [or state] funding shall provide to the U.S. Department of Justice’s Civil Rights Division and U.S. Department of Education’s Office for Civil Rights [or to the applicable state agency or agencies] 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, or national origin is considered in the student admissions process (if different departments within the institution have separate admission processes and consider race, color, and national origin differently, then the report shall provide the information required for each department separately).
Section 3. If race, color, or national origin is considered in the student admission process, then the federally [or state] funded institution of higher education shall provide the following information:

The racial, color, and national origin groups for which membership is considered a plus factor or a minus factor and 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 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 race-neutral 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, 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, and national origin and the admissions decision made by the school regarding those applicants, shall accompany the report in computer-readable form, with the identity of individual students redacted but with appropriate links, so that it is possible for the Civil Rights Division and Office for Civil Rights [or applicable state agency or agencies] or other interested persons to determine through statistical analysis the weight being given to race, color, and national origin relative to other factors; and
Analysis—and the underlying data needed to perform such an analysis—of whether there is a correlation (i) between membership in a group favored on account of race, color, 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 (and, where applicable, professional examination passage 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 herein shall be construed as authorizing, allowing, encouraging, requiring, or permitting the use of preferences or discrimination based on race, color, or national origin.

Related posts: