Case could heighten pressure on President Biden to deliver on racial-equity agenda
The Supreme Court announced on Monday that it will reconsider whether colleges and universities can use race as a factor in admissions.
The justices took up a pair of challenges to affirmative action policies at Harvard and the University of North Carolina. Both broadly allege that the schools discriminate against Asian and white applicants to admit a preferred number of black and Hispanic students. The plaintiffs’ group behind both cases, Students for Fair Admissions, is urging the High Court to scuttle its affirmative action precedents and ban race-conscious admissions.
“Both the Pew Research Center and Gallup have released surveys which indicate that nearly 75 percent of Americans of all races do not believe race or ethnicity should be a factor in college admissions,” said Students for Fair Admissions president Ed Blum. “In a multi-racial, multi-ethnic nation like ours, the college admissions bar cannot be raised for some races and ethnic groups but lowered for others.”
A victory for the plaintiffs would heighten pressure on President Joe Biden to deliver on his racial-equity agenda. As a candidate, he promised sweeping reforms on voting rights and policing, but a year of legislation on both topics is languishing in Congress with little prospect of success. And as Biden has struggled to convince lawmakers to support him, he faces an uphill battle in Monday’s cases before the right-leaning Court.
The plaintiffs have compiled evidence suggesting bias against Asians in admissions. At Harvard, admissions personnel rank students on a numerical scale of four different criteria: academics, athletics, extracurriculars, and a personal rating. Though Asian applicants exceed or are competitive with all racial groups in the first three domains, their personal scores are inexplicably lower than all other racial groups.
Students for Fair Admissions says those low scores reflect “model minority” bias. Asian applicants, they say, are victims of stereotypes that pigeonhole them as highly intelligent but boring and shy. In the evidence-gathering phase of the case, the plaintiffs obtained internal memos from Harvard’s Office of Institutional Research that flagged the disparate scoring outcomes, but the reports did not lead to any policy changes. The plaintiffs also note admissions rates by racial group hold steady over time.
“This manifest steadiness in the racial composition of successive admitted classes speaks for itself,” the petition reads.
In the UNC case, Students for Fair Admissions obtained instant messages traded among admissions officers that show staff speaking crudely about race.
In one representative exchange, an admissions officer alerted a colleague to an applicant with a 2400 SAT score and top marks in Advanced Placement courses. The second officer asked whether the applicant was “brown.” “Heck no. Asian,” the first officer replied. “Of course,” said the second officer. “Still impressive.”
Monday’s news is unwelcome for progressives, who are already bracing for setbacks on abortion and gun rights this term. In their judgment, it’s another signal that the right-leaning Court will be an active force in politics, rather than a passive, reactive institution.
“The goal of these suits—to end the consideration of race in college admissions—is extreme, ignores the history of race discrimination, and threatens diversity and inclusion on campuses,” said Sarah Hinger, a staff attorney for the ACLU’s racial justice program.
The Biden administration urged the justices to steer clear of Monday’s cases. They emphasized that the government’s personnel goals are tied to race-conscious admissions at the nation’s top colleges. Biden has prioritized minority appointments across the government, even as a handful of Democrats pan the dearth of Asian appointees in the cabinet and White House senior staff.
“Among other things, the government has a vital interest in drawing its personnel—many of whom will eventually become its civilian and military leaders—from a well-qualified and diverse pool of university and service academy graduates,” the brief reads.
The administration’s top Supreme Court lawyer, solicitor general Elizabeth Prelogar, received a waiver from ethics officials to participate in the case, even though she is a former Harvard employee. A watchdog group, Protect the Public’s Trust, is pressing the administration for information related to the waiver.
The plaintiffs emphasize that race-conscious policies aren’t necessary to make sure disadvantaged students get a fair shot at admission. Eliminating legacy admissions, awarding preferences by zip code, and shoring up community college transfers will keep campuses open to all comers, the plaintiffs say.
There’s a strategic bonus to simultaneously attacking Harvard and UNC’s practices. UNC is a public school, so the plaintiffs can attack its program on statutory and constitutional grounds. Harvard is a private institution, though it is bound by federal anti-discrimination laws because it accepts tax dollars each year.
It’s most likely that the appeals will be heard during the Court’s next term, which begins in October. But it’s plausible that the cases could be scheduled for this term’s last argument session, which begins in April.
In what amounts to state-orchestrated discrimination, California is using bizarre grounds to mandate racial and gender diversity on corporate boards.
The trial commenced this week in Crest v. Padilla, a lawsuit filed by Judicial Watch to enjoin California from requiring that publicly held corporations headquartered in California include at least one director who “self-identifies” as a woman. Pursuant to California’s SB 826, by the end of 2021, up to three self-identified women will be required, depending on the size of the board.
In September 2020, two years after enacting SB 826, California went even further, when Governor Newsom signed AB 979 into law. That law requires that California-headquartered public companies also include at least one director from an “underrepresented community,” and by the end of 2022, up to three such directors, depending on the size of the board. The statute defines a “director from an underrepresented community” to be an individual who “self‑identifies as Black, African American, Hispanic, Latino, Asian, Pacific Islander, Native American, Native Hawaiian, or Alaska Native, or who self‑identifies as gay, lesbian, bisexual, or transgender.” Arabs, Armenians, Persians, and Turks, who often are viewed as non-European whites, are excluded from the list of favored minority groups.
A small board could appoint a Rachel Dolezal who self-identifies as an African-American woman to satisfy both requirements. Or, if the board can find biological white males who identify as Alaskan Natives or use the pronoun “she,” they (meaning all of them, not “they” in the royal or gender fluid sense) could satisfy both statutes with a board consisting only of confused white males.
California’s corporations are rejecting this social engineering. In March 2021, the California secretary of state reported that of 647 companies to which SB 826 applies, only 311 reported compliance. At least 50 companies avoided compliance with both statutes by leaving the state or going private.*
Judicial Watch has also sued to enjoin AB 979. That action is in its discovery phase. Both Judicial Watch actions were filed in state court and assert that California laws pertaining to race, ethnicity, sexual preference, and transgender status are presumptively invalid, and taxpayer-funded resources may not be used to implement such laws absent a compelling government interest. Judicial Watch alleges that the California legislature knew these bills to be unlawful when enacted and that the laws cannot pass strict scrutiny.
Though a Judicial Watch victory on SB 826 likely would presage a victory in its similar action against AB 979, three federal lawsuits have potentially greater national implications. Merland v. Weber and Alliance for Fair Board Recruitment (AFBR) v. Weber allege that both statutes violate the 14th Amendment and federal civil-rights laws. The National Center for Public Policy Research last week filed a complaint with the novel premise that the California statutes violate shareholder rights to vote for board nominees based on merit, free of government-imposed race, sex, and sexual orientation quotas.
When it passed SB 826, California’s legislature did not claim that California companies discriminate against female candidates for director. Instead, the legislature cited reports that gender diversity may improve a corporation’s financial performance. For AB 979, the legislature cited reports suggesting that racial diversity among executives might enhance earnings. The legislature did not cite any evidence that racial diversity on corporate boards improves performance, and academic studies have failed to establish that link.All Our Opinion in Your Inbox
The AFBR lawsuit alleges that the reports supporting AB 826 were not peer reviewed, or the result of sound statistical analysis. By contrast, numerous peer-reviewed studies analyzed by Jonathan Klick of the American Enterprise Institute have found no effect, or even a negative effect, from increased board diversity. And a study published last week found “a robust and significantly negative stock market reaction” to California’s gender quota mandate.
Beyond the lack of factual evidence, it is remarkable that progressives now identify profit as a “compelling interest” that overrides the heavy burden of using race, ethnicity or gender as the basis for state-orchestrated discrimination. And, despite the legislature’s rationale for the benefits of diversity, both statutes permit a board to exclude all whites and men. The hypocrisy is stunning.
California is not alone. By 2020, a dozen states had enacted or were poised to enact requirements to enhance diversity on boards, though most of the proposals stop at disclosure. Superficially, that is the approach taken by Nasdaq, which recently received SEC approval to require companies trading on Nasdaq to publicly disclose board diversity statistics and explain any failure to have at least two “diverse” directors, including one who self-identifies as female and one who self-identifies as either an “underrepresented minority” or LGTBQ+.
It has been axiomatic that the purpose of a board is to maximize shareholder value. Doing so requires experience and acumen. The Sarbanes–Oxley Act and the Dodd–Frank Act place onerous obligations on directors, particularly independent directors and members of the audit committee. The SEC has long required public companies to disclose biographical information about each director. In 2009, the SEC also required companies to explain “the specific experience, qualifications, attributes or skills that led to the conclusion that the person should serve as a director.”
Until fairly recently, a hugely disproportionate share of individuals with the necessary experience and skills to serve as directors were white men. But, by 2018, 25 percent of Fortune 100 board seats were held by women and 19.5 percent by minorities. Without government mandates, the boards of public companies have continued to become more diverse. The percentage of Fortune 500 boards with greater than 40 percent diversity has more than doubled in the last ten years.
Not only is this progress insufficient for progressives, but they reject the premise that corporations should maximize shareholder value, or that directors should be selected based on talent. Rather, their priority is “equity,” meaning that jobs are awarded to achieve parity with each group’s percentage in the population, regardless of qualifications.
It is difficult to see how the California laws comply with the Constitution, or federal law.
Racial balancing can never satisfy the compelling-interest requirement for racial and gender preferences. Chief Justice John Roberts succinctly reiterated this in Parents Involved in Community Schools v. Seattle School District No. 1 (2007):
Accepting racial balancing as a compelling state interest would justify the imposition of racial proportionality throughout American society, contrary to our repeated recognition that at the heart of the Constitution’s guarantee of equal protection lies the simple command that the Government must treat citizens as individuals, not as simply components of a racial, religious, sexual or national class.
The U.S. Supreme Court also has held that “racial classifications are antithetical to the Fourteenth Amendment, whose ‘central purpose’ was ‘to eliminate racial discrimination emanating from official sources in the States’” (Shaw v. Hunt , quoting McLaughlin v. Florida ). More than once the Court observed that “distinctions between citizens solely because of their ancestry are by their very nature odious to a free people” (e.g., Rice v. Cayetano  and Hirabayashi v. United States ).
Though the criteria for gender is somewhat more flexible, as Justice Ruth Bader Ginsburg explained in United States v. Virginia (1996), the “inherent differences between men and women” cannot justify the “denigration of the members of either sex,” support the imposition of “artificial constraints on an individual’s opportunity,” or permit government to “rely on overbroad generalizations about the different talents, capacities, or preferences of males and females.” Last year, in Bostock v. Clayton County, the Supreme Court extended the prohibition against sex discrimination in Title VII of the Civil Rights Act of 1964 to include employment discrimination on the basis of sexual orientation and transgender status.
The Supreme Court has applied prohibitions on state action to a private company when the state requires the unlawful act. In California, the improper acts are specifically mandated by the state, at risk of escalating fines.
The destructive fixation on race and gender has had profoundly negative effects on education, the military, government, science, and other sectors. With the quality of corporate boards at America’s largest corporations now under siege, the outcome will not be any better.
If you heard the Trump Administration Department of Labor was using legal theories developed under Barack Obama to sue some of the nation’s most successful companies, you’d probably presume it was some kind of “fake news.”
You’d be wrong. And what’s even more remarkable is that it appears to be going on without the approval of Labor Secretary Eugene Scalia who, his admirers believe, has one of the sharpest minds in Trump’s Cabinet.
A little-known agency inside the department called the Office of Federal Contract Compliance Programs (OFCCP) was created to promote affirmative action in federal contracting. Left-wing, anti-business progressives took it over under Obama and transformed it into a place that uses data collected from contractors to look for discrimination in hiring and promotion rather than complaints filed by employees.
This, say some who follow the agency’s actions closely represents a significant departure from past practices. Discrimination suits are being brought using data mined from government contractors on hiring and promotions, using statistical anomalies to manufacture discrimination claims.
This approach, which critics describe as unreliable, is nonetheless being used by the Trump administration to taint companies with bogus allegations, usually hinging on the idea a “pay gap” exists between women and men or between different racial categories. Romina Boccia of The Heritage Foundation wrote about this in 2017 saying, “The Department of Labor has sued several tech companies, including giants like Google and Oracle, for alleged gender discrimination in pay. Pay disparities reflect a wide number of variables that aren’t easily captured in overly simplistic government statistics.”
Boccia cites the fact “current research has limitations in what factors are included,” because it doesn’t include data on women’s “strong preference for in-kind benefits over cash wages” and “immeasurable components of compensation—such as flexible work schedules—likely account for the remaining gap.” The use of statistics alone without taking other mitigating factors into account is public policy malpractice that ignores the realities of the world and the workplace.
The United States Chamber of Commerce has targeted the agency as particularly hostile to businesses. In a 2017 report, it exposed OFCCP tactics like demanding employers “provide enormous amounts of data in a short time frame, rather than working with the employer to narrow the request to focus on data relating to a specific issue.” And it’s been found to have unilaterally set “dates and times for on-site investigations without an invitation to discuss legal issues or trying to work with the employer’s schedule.”
This may sound benign but these tactics amount to the bullying of business to settle unfair suits quickly rather than fight and potentially commit so-called process crimes while doing so.
The goal of the lawsuits brought by OFCCP has been to establish new legal precedent allowing for statistics alone to be the basis of a case of employment discrimination. Evidence of a hostile comment by an employer, email exchanges between hiring authorities evidencing discriminatory intent, and other direct evidence need not be provided.
This is a dangerous precedent, something a sharp and experienced attorney like Secretary Scalia would recognize immediately. It is inconsistent with the American legal doctrine that a person, or in this case a company, need not affirmatively prove they have done nothing wrong. Due process counts, as does the presumption of innocence. Liberal activists want to use case law to rewrite the statutes to shift the burden of proof to the employer based on a mere allegation. They should not be allowed to get away with this.
We already know how damaging an accusation can be, especially when it concerns issues related to racial or gender bias. Companies should not have to prove they are not guilty. The government should have to prove they are, using something more than a statistical model that paints a distorted picture of a company’s hiring or promotion policies. This sloppy legal practice should be put to an end immediately, and Secretary Scalia should make it a priority to see that this occurs.
by Thomas Sowell
The 50th anniversary of the March on Washington, and of the Reverend Martin Luther King’s memorable “I have a dream” speech, is a time for reflections — some inspiring, and some painful and ominous.
At the core of Dr. King’s speech was his dream of a world in which people would not be judged by the color of their skin, but by “the content of their character.”
Judging individuals by their individual character is at the opposite pole from judging how groups are statistically represented among employees, college students or political figures. Continue reading