Last week National Review Online published this column by me, titled “Lawsuits Wanted.” It’s a review of some good lawsuits that have been filed in opposition to race-based decision-making — and some lawsuits that still need to be filed.
The fight for equal opportunity has seen some useful victories in recent years, but the opposition is tenacious and the struggle continues. Several important legal challenges to race-based decision-making are currently pending in federal courts — and a number of other good cases are still waiting to be brought.
Let’s start with what’s pending. One case, brought by Rothe Development, Inc., had a hearing in trial court yesterday. It challenges the federal Small Business Administration’s use of racial and ethnic preferences in government contracting.
A second case, accepted for review earlier this month by the Supreme Court, presents the question whether “disparate impact” causes of action may be brought under the Fair Housing Act. That particular case is out of Texas, where a nonprofit is suing the state’s Department of Housing and Community Affairs for alleged racial disproportions in the allocation of tax credits for building low-income housing. A similar lawsuit, specifically challenging the Obama administration’s regulations that embrace the disparate-impact approach, is pending in a District of Columbia federal trial court.
These are all excellent cases. There is no need to use racial preferences to ensure racial nondiscrimination in contracting; a more narrowly tailored approach is to require greater transparency in the publication of bidding opportunities and the awarding of contracts. And holding people liable for actions (like, say, refusing to rent to those with recent criminal records) that do not discriminate by race in their terms or in their intent cannot be squared with the text of the Fair Housing Act (which bans only racially discriminatory treatment) and will — perversely — not only discourage legitimate actions but encourage race-based ones.
The lawsuit in Fisher v. University of Texas also returned to the news over the summer. In 2013 the Supreme Court sent Fisher back to the appeals court for reconsideration, saying the lower court had applied the wrong standard in its decision. The university’s use of racial preferences was, alas, upheld in the latest appellate-panel decision, but a review by the full court of appeals has now been sought, and the case is likely headed back to the Supreme Court. Win or lose, though, it’s a good lawsuit — putting schools everywhere on notice that such discrimination is not to be undertaken lightly, highlighting the unpopularity of race-based admissions, and potentially ending or at least limiting the extent of this nonsense.
And there are other excellent cases waiting to be brought.
Consider, for example, Executive Order 11246, signed by Lyndon Johnson in 1965. The order’s affirmative-action regulations notoriously require “goals” and “timetables” for federal contractors if women and minorities are “underrepresented” in their workforces. It is quite clear from numerous Supreme Court decisions that the regulations’ use of racial and gender classifications will trigger judicial strict scrutiny; that mere statistical disparities are not sufficient to justify the use of such classifications; and that, even if they were, there is no justification for goals and timetables to be triggered when women and minorities are “underrepresented” but not when men and non-minorities are.
So these regulations are unconstitutional, as well as at odds with the nondiscrimination requirements of the 1964 Civil Rights Act’s Title VII (which bans employment discrimination) and its case law; yet the regulations remain in effect. An adversely affected employee or employer should sue.
Here’s another example: The federal government has promulgated many regulations under the Act’s Title VI that adopt a “disparate impact” approach for any program or activity that receives federal money. These regulations have recently been invoked, for instance, by the Obama administration in its claims that statistical disparities in school discipline (or anything else a school does) can amount to illegal racial discrimination.
But the Supreme Court has long held that Title VI itself bans only “disparate treatment.” That is, it bans actions that are motivated by race, but not actions that are innocently motivated and simply have a disproportionate racial effect. As the Court archly noted in a footnote in Alexander v. Sandoval (2001) (which decided a different question), “We cannot help observing . . . how strange it is to say that disparate-impact regulations” properly implement Title VI when the statute “permits the very behavior that the regulations forbid.”
Yet despite this invitation, no case has been presented to the Court to decide if these regulations are invalid. Getting rid of the federal government’s disparate-impact regulations under Title VI would end a lot of pressure to engage in race-based decision-making.
More ambitiously, lawsuits might be brought challenging the constitutionality of those statutes that do explicitly adopt a “disparate impact” approach, namely Title VII (which applies this approach to public and private employment decisions) and — to a lesser extent — Section 2 of the Voting Rights Act (which bans voting rules that have disparate “results”). Consider, in this regard, the New Haven firefighters case, Ricci v. DeStefano, which the Supreme Court decided in 2009.
The Court ruled there, quite correctly, that the city’s invocation of Title VII’s disparate-impact ban did not justify its decision to throw out the results of a firefighter exam because of its politically incorrect outcome. But the ruling was based on New Haven’s lack of sufficient evidence to meet the disparate-impact standards; it did not address whether the disparate-impact approach itself was legal. The Court thus dodged the fundamental question that Justice Scalia identified in his concurring opinion: “Title VII’s disparate-impact provisions place a racial thumb on the scales, often requiring employers . . . to make decisions based on . . . racial outcomes. That type of racial decisionmaking is . . . discriminatory.” He concluded that “the war between disparate impact and equal protection will be waged sooner or later.”
So, why not sooner . . . again, with a lawsuit by an adversely affected employer or employee?
Even if these statutes are not struck down, they should be construed as narrowly as possible to avoid constitutional problems — by, for example, courts’ giving greater weight to the employer’s or voting jurisdiction’s lack of racial motivation and to the legitimate and nondiscriminatory reasons behind the challenged practice.
Finally, something needs to be done about the fact that too many employers (universities being the worst) apparently believe that Title VII permits politically correct discrimination on the basis of race, ethnicity, and sex, so long as it is done in the name of “diversity.”
Employers today declare that they “celebrate diversity,” but their lawyers ought to know that the federal courts have never recognized a “diversity” rationale for employment discrimination under Title VII (university admissions are covered by a different law), and at least one (the U.S. Court of Appeals for the Third Circuit, in 1996) has rejected it. Nor are they likely to do so when, for example, the law’s text pointedly allows no business-related exception, no “bona fide occupational qualification,” for race.
The confusion is attributable in part to the Supreme Court’s unfortunate decisions upholding two affirmative-action programs, in United Steelworkers v. Weber (1979) and Johnson v. Santa Clara County Transportation Agency (1987), respectively.
But the Johnson decision made clear that preferences are to be used only “to attain a balanced workforce, not to maintain one” (emphasis in original), which is inconsistent with the diversity rationale. Thus, any employer using preferences must meet Weber’s remedial predicate and show a “manifest imbalance” in a “traditionally segregated” position. Fifty years after the 1964 Act made other employment discrimination illegal, there is not much “traditional segregation” left, especially for employers who have been celebrating diversity by discriminating in favor of “underrepresented” minorities.
Indeed, the Supreme Court’s decision in Ricci v. DeStefano suggests that an employer’s track record of discrimination against, say, Latinos must be so bad and so recent that, if it did not provide a preference, there is a “strong basis in evidence” that it could be successfully sued for that failure — a very high bar.
Moreover, Weber and Johnson held that preferences cannot “unnecessarily trammel” the interests of non-preferred employees. Today there will never be a situation where the “necessary” way to remedy discrimination is through more discrimination, rather than simply stopping discrimination. The Supreme Court’s opinion last year in Fisher v. University of Texas likewise stressed that racial preferences in university admissions may be used only as a last resort.
Properly construed, then, Weber and Johnson ought to have little force today, but we need lawsuits clarifying this, with the ultimate aim of a Supreme Court decision declaring that the cases are now obsolete – and thus ending the use of racial preferences in employment.
One last note: The whole premise of this article is that the judiciary will follow the law. And that underscores the importance of winning elections, so that responsible judges and justices will be appointed.
