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Unfinished business: the Bush Administration and racial preferences.


To evaluate the Bush Administration's record in opposing preferential treatment on the basis of race, ethnicity, or sex--"affirmative action affirmative action, in the United States, programs to overcome the effects of past societal discrimination by allocating jobs and resources to members of specific groups, such as minorities and women. " (1)--we have to look not only at what it did, but also at what it needed to do. That is, we must first look at how current law requires, encourages, or allows such affirmative discrimination and what steps, ideally, need to be taken to change this situation. After establishing that baseline, we can then measure how close the Bush Administration came to fulfilling this ideal. We cannot judge how far the Administration advanced the ball, particularly in the courts, without knowing where the ball was in the first place.

Unfortunately, the Administration's record is, in short, decidedly mixed. As a general matter, the Bush Administration's record in this area improved on the Clinton Administration's. The latter aggressively encouraged the use of racial preferences; the former's improvement was not so much that it discouraged such use, but that it did nothing. There were some exceptions: Sometimes the Bush Administration continued to accept preferences, and sometimes it actively opposed them. But its savings and sins were principally of omission, not commission.

The Administration said very little about this subject, and when it did say anything, it was because its hand had been forced, such as when the University of Michigan (body, education) University of Michigan - A large cosmopolitan university in the Midwest USA. Over 50000 students are enrolled at the University of Michigan's three campuses. The students come from 50 states and over 100 foreign countries.  cases, Gratz v. Bollinger Gratz v. Bollinger, 539 U.S. 244 (2003)[1], was a United States Supreme Court case regarding the University of Michigan undergraduate affirmative action admissions policy.  (2) and Grutter v. Bollinger Grutter v. Bollinger, 539 U.S. 306 (2003), is a case in which the United States Supreme Court upheld the affirmative action admissions policy of the University of Michigan Law School. The 5-4 decision was announced on June 23, 2003. , (3) were before the Supreme Court and the topic was unavoidable. It took no position on the Michigan Civil Rights Initiative The Michigan Civil Rights Initiative (MCRI), or Proposal 2 (Michigan 06-2), was a ballot initiative in the U.S. state of Michigan that passed into Michigan Constitutional law by a 58% to 42% margin on November 7, 2006, according to results officially certified by the  (4) (which proposed to overturn the Court's decision in Grutter), and it managed to avoid revising the Department of Education's guidelines and regulations in this area, even after the Court had decided Grutter and Gratz. Occasionally the Administration would comment that a pending bill containing a racial preference raised constitutional problems, (5) but it never proposed legislation that would have cut back on such preferences.

Indeed, if the Administration could have avoided saying anything at all about the subject of racial preferences--if it could have simply made the issue go away--it would have done so eagerly. This is probably because, on the one hand, its lawyers and policy advisers thought such discrimination difficult or impossible to defend, but its political experts were reluctant to court attacks from race-baiting Democrats and the civil rights establishment.

The use of racial preferences is concentrated in four areas: voting, government contracting, education, and employment. There are some exceptions (for example, the use of such preferences in appointments to state boards state boards Examinations administered by a US state board of medical examiners to license a physician in a particular state; these examinations play an ever-decreasing role in state medical licensure, as these bodies now rely on standardized national examinations  and some aspects of health care), but they are relatively minor.

Voting is a special case. The Voting Rights Act Voting Rights Act

Act passed by the U.S. Congress in 1965 to ensure the voting rights of African Americans. Though the Constitution's 15th Amendment (passed 1870) had guaranteed the right to vote regardless of “race, color, or previous condition of servitude,”
, which is used to require racially gerrymandered districts, (6) has federalized the issue. As a result, there is nothing that the States can do about it. Realistically there was and is nothing to be done through the political branches either. Congress overwhelmingly reauthorized these provisions in 2006, (7) and President Bush signed the bill. (8) Thus, all that can be done for now is to challenge the Act's constitutionality. (9)

The rest of this Essay proceeds seriatim [Latin, Severally; separately; individually; one by one.]

seriatim (sear-ee-ah-tim) prep. Latin for "one after another" as in a series. Thus, issues or facts are discussed seriatim (or "ad seriatim") meaning one by one in order.
 through the other three areas. For each, the status of the law varies, and so do the roles of the federal government, state and local governments, and the private sector. In what follows, the Essay will interweave commentary on what the Bush Administration did along with discussion of what needed to be done (and, alas, still needs to be done).


The case law regarding government contracting is very favorable to those challenging state and local racial preferences. (10) In 2004, for example, the U.S. District Court for the Southern District of Florida not only struck down a program in Miami, but also held the officials who applied it personally liable. (11) Companies that have lost out on contracts have served as willing plaintiffs, and anti-preference public interest groups, such as the Pacific Legal Foundation and the Mountain States Legal Foundation The Mountain States Legal Foundation is a public interest law firm founded in 1976. The organization works through litigation and advocacy to further the cause of individual liberties, especially in the realm of economic and property rights. , among others, have brought many of their cases. (12) Note that in the event of a legal challenge, the state or local government will have to pay its lawyers and expert witnesses; moreover, if it loses (and it will), it will also have to pay the other side's lawyers and expert witnesses. On the other hand, many of these state and local programs still exist, and the Bush Administration did nothing to challenge them.

The case law is not as favorable with regard to federal contracting preferences, although plaintiffs have also won some cases there. The most important victory was the 1995 decision in Adarand Constructors, Inc. v. Pena, which established that racial preferences in federal contracting would be subject to strict constitutional scrutiny, just as state and local preferences are. (13) In addition, this past November, the Federal Circuit in Rothe Development Corp. v. U.S. Department of Defense struck down an important program setting aside a certain percentage of Department of Defense contracts for minority-owned businesses because it failed the strict scrutiny A standard of Judicial Review for a challenged policy in which the court presumes the policy to be invalid unless the government can demonstrate a compelling interest to justify the policy.  demanded in Adarand. (14)

Yet the Bush Administration's record with respect to such federal set-asides was mediocre. It made some marginal improvements in these programs, most importantly Adv. 1. most importantly - above and beyond all other consideration; "above all, you must be independent"
above all, most especially
 with regard to gender (but not racial) preferences in the Small Business Administration's programs, where it required specific showings that discrimination was the cause of any disparities. (15) But it failed to make any kind of principled or systematic revisions.

In court, the Administration defended those programs when challenged. As noted above, (16) this is to be expected; the executive branch generally feels obliged to defend even programs that it dislikes so long as there are colorable arguments in their favor and so long as they do not compromise the executive branch's own authority. But to the Administration's credit, in at least one case--Western States Paving Co. v. Washington State Department of Transportation--its defense conceded that localized findings of discrimination must be made to satisfy the remedial predicate In programming, a statement that evaluates an expression and provides a true or false answer based on the condition of the data.  required by the "compelling interest" prong of strict scrutiny. (17) And in a brief filed in the first year of the Bush Administration, the Department of Justice defended the Department of Transportation's Disadvantaged Business Enterprise program with the concession that state actors "may use race-conscious remedies only as a last resort," that is, "where the effects of discrimination are stubborn, persistent, and incapable of eradication through race-neutral measures." (18)

Any program that uses classifications and preferences based on race, ethnicity, or sex raises serious constitutional issues. Using racial classifications and setting goals of particular racial percentages inevitably encourage discrimination as a means to meet them, and so these practices should and do trigger strict constitutional scrutiny, (19) Legal issues aside, programs that discriminate on these bases are divisive and unfair, and any system that awards contracts to anyone other than the lowest qualified bidder will cost the government and its taxpayers money.

So what is needed now is not much different from what was needed when the Bush Administration began and Adarand was, once again, before the Supreme Court: (20) namely, a decision holding that, although remedying discrimination (the only governmental interest advanced for preferences in contracting) is a compelling interest, it is now basically impossible for the use of preferences to be narrowly tailored. Instead, federal programs should be race-blind and race-neutral. To the extent that the government is concerned that racial groups face discrimination in its contracting programs, there are effective responses that do not require racial classifications or preferences.

To defend their use of racial preferences, governments frequently point to evidence of racial disparities in their contracting. A disparity is not necessarily evidence of discrimination, however, let alone proof. Likewise, much anecdotal evidence anecdotal evidence,
n information obtained from personal accounts, examples, and observations. Usually not considered scientifically valid but may indicate areas for further investigation and research.
 is dubious, particularly when those presenting it stand to gain monetarily if the government uses contracting preferences. And most importantly, even if statistical or anecdotal evidence establishes a pattern of recent discrimination, there are better ways to end such discrimination than racial classifications and targets.

As I testified before the U.S. Commission on Civil Rights on behalf of the Center for Equal Opportunity,
   At every step of the [contracting] process, it is clear that there
   are more narrowly tailored remedies than using racial preferences.
   If companies are being excluded from bidding because of unrealistic
   or irrational bonding or bundling requirements, then those
   requirements should be changed for all companies, regardless of the
   skin color of the owner. If companies who could submit bids are not
   doing so, then the publication and other procedures used in
   soliciting bids should be opened up--but, again, to all potential
   bidders, not just some. And, finally, if it can be shown that
   government bids are being denied to the lowest bidder because of
   that bidder's race, then there should be put in place safeguards to
   detect discrimination and sanctions to punish it--but, again, those
   safeguards and sanctions should protect all companies from racial
   discrimination, not just some.

   Contracts are not like hiring, promoting, or even university
   admissions, where there is an irreducible and significant amount of
   subjectivity in the decisionmaking. Contracting is an area that can
   be made very transparent and where this transparency should make it
   relatively easy to detect and correct discrimination.

   Even if there could still, in theory, be a few cases of
   discrimination that go unremedied in the absence of racial
   classifications, there will be many more cases of discrimination
   that will result from the institutionalization of racial and ethnic
   preferences. (21)

In 2005, the U.S. Commission on Civil Rights published an excellent report collecting and discussing these race-neutral alternatives to racial classifications and quotas. (22) The only shortcoming of the Commission's report is that it does not make clear that the aim of these alternatives is to correct and end discrimination, not to achieve diversity for its own sake. But that should be obvious in light of the case law in this area. The judicial decisions make very clear that the desire to achieve a particular politically correct politically correct Politically sensitive adjective Referring to language reflecting awareness and sensitivity to another person's physical, mental, cultural, or other disadvantages or deviations from a norm; a person is not mentally retarded, but  mix is not itself a compelling interest; that would be "discrimination for its own sake. This the Constitution forbids." (23) Rather, the use of preferences can be justified only if there is an interest beyond such bean-counting--in the case of government contracting, ending racial discrimination.

But, again, if the federal government believes that racial discrimination is occurring in its contracting, there are many race-neutral steps it can take to fight it. It is very unlikely that, in 2009, the only way to end race discrimination in contracting is through race discrimination in contracting. As Chief Justice Roberts Justice Roberts can refer to two separate United States Supreme Court justices:
  • John Roberts, Chief Justice (2005-present)
  • Owen Roberts, Associate Justice (1930-1945)
 wrote recently, "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race." (24)


With respect to K-12 education, the most prominent use of racial preferences has been the consideration of race in assigning students to public schools. The Supreme Court in 2007 struck down such preferences, (25) but how much more work needs to be done here will depend on how school boards react to the decision; (26) the jury is still out on that. In its amicus briefs, the Bush Administration opposed the race-based student assignments, but I am not aware of any evidence that it aggressively followed up on the decision by, for instance, moving against an individual school district or issuing strict guidance (although, with regard to the former, I am also not aware whether the Administration had evidence of noncompliance).

The use of preferences with regard to university students is, of course, both widespread and controversial. (27) With regard to admissions preferences, there is little political accountability (unlike at the K-12 level), and, moreover, the political branches at every level seem unwilling to intervene. The Center for Equal Opportunity has pushed for "sunshine" legislation at both the federal and state level, (28) but this is an uphill battle. The federal Department of Education could aggressively monitor admissions preferences, and the Center for Equal Opportunity has filed some complaints with it (some based on admissions data obtained through freedom-of-information requests filed by the Center for Equal Opportunity and the National Association of Scholars). But as useful as pressure from the Department of Education might be (even assuming that the current Administration is willing to bring such pressure, as the Bush Administration was not), it can only limit the use of preferences; it cannot end them. For that, there has to be a ballot initiative in the relevant state (29) or a Supreme Court ruling.

When admissions preferences were last before the Court, the Bush Administration's amicus briefs reached the right bottom line--namely, that the preferences there were illegal. (30) But the briefs argued only that the university's use of preferences was not narrowly tailored; they carefully avoided taking a position on whether educational benefits from student body diversity constitute a compelling governmental interest. The Justice Department's draft briefs had said there was no such interest, but the White House insisted on removing that part of the brief. (31) We will never know if Justice O'Connor might have been persuaded to vote the other way in Grutter if the original briefs had been filed.

Universities also use non-admissions preferences (for example, for summer programs, internships, and scholarships). But the Center for Equal Opportunity and others have been quite successful in ending the racial exclusivity of these programs (occasionally by filing complaints with the Department of Education, which sometimes played a helpful role during the Bush Administration, although slowly and unsystematically Adv. 1. unsystematically - in an unsystematic manner; "his books were lined up unsystematically on the shelf"
consistently, systematically - in a systematic or consistent manner; "they systematically excluded women"
). (32) For example, a lawsuit by the Center for Individual Rights against Virginia Commonwealth University Formed by a merger between the Richmond Professional Institute and the Medical College of Virginia in 1968, VCU has a medical school that is home to the nation's oldest organ transplant program. , the Dow Jones Dow Jones

the best known of several U.S. indexes of movements in price on Wall Street. [Am. Hist.: Payton, 202]

See : Finance
 Foundation, and the Richmond Times-Dispatch The Richmond Times-Dispatch (RTD or TD for short) is the primary daily newspaper in Richmond, Virginia the capital of Virginia, and is commonly considered the "newspaper of record" for events occurring in much of the state.  recently ended the use of preferences in a summer journalism program jointly run by these three entities that had been racially exclusive. (33) The case law is quite clear that racial exclusivity is illegal, but some degree of preference is probably still allowed under Grutter. Here again, this is unlikely to change absent a ballot initiative or Supreme Court decision, and even then, these programs could probably remain if they are run at arm's length by outside, non-federally funded organizations.

Racially exclusive programs violate Title VI of the Civil Rights Act of 1964, which forbids any recipient of federal money from discriminating "on the basis of race, color, or national origin." (34) The Supreme Court's decision in Gratz clearly demonstrates that racially exclusive programs will not pass constitutional muster, and although Grutter acknowledged diversity as a compelling governmental interest, both Grutter and Gratz explained that to pass the "narrowly tailored" prong of strict scrutiny, a school must engage in "individualized consideration" of students. (35) Certainly, a program that categorically excludes students based upon their race or ethnicity does not provide "individualized consideration." Grutter explicitly warns that there should be "no policy, either de jure [Latin, In law.] Legitimate; lawful, as a Matter of Law. Having complied with all the requirements imposed by law.

De jure is commonly paired with de facto, which means "in fact.
 or de facto [Latin, In fact.] In fact, in deed, actually.

This phrase is used to characterize an officer, a government, a past action, or a state of affairs that must be accepted for all practical purposes, but is illegal or illegitimate.
, of automatic acceptance or rejection based on any single 'soft' variable" such as "race or ethnicity," (36) and Gratz states that any program must "not contemplate that any single characteristic [again, such as race or ethnicity] automatically ensure[s] a specific and identifiable contribution to a university's diversity." (37) Likewise, the Supreme Court struck down the programs in Parents Involved in Community Schools v. Seattle School District No. 1 because they "do not provide for meaningful individualized review of applicants but instead rely on racial classifications in a nonindividualized, mechanical way." (38)

Accordingly, in recent years Princeton University Princeton University, at Princeton, N.J.; coeducational; chartered 1746, opened 1747, rechartered 1748, called the College of New Jersey until 1896. Schools and Research Facilities
, the Massachusetts Institute of Technology, the Harvard Business School Harvard Business School, officially named the Harvard Business School: George F. Baker Foundation, and also known as HBS, is one of the graduate schools of Harvard University. , and many others have concluded that similar programs at their schools were indeed illegal and therefore ended the programs' racial exclusivity. (39) The Ford Foundation apparently had made the same determination some years ago and declined to continue funding Princeton's program. (40) And in the Bush Administration, the Office for Civil Rights at the U.S. Department of Education issued a statement that racially exclusive programs "are extremely difficult to defend" under the applicable law. (41) Even more recently, in February 2006, the U.S. Department of Justice forced Southern Illinois University to end the racial exclusivity of several graduate programs after the Center for Equal Opportunity brought these programs to the Department's attention. (42)

Progress against racial preferences in higher education will accordingly, require chipping away at Grutter, limiting the circumstances in which a university's interest in preferences can be deemed "compelling" and "narrowly tailored," in both the admissions and non-admissions contexts. (43) Ultimately, of course, Grutter delenda est "Delenda Est" is a short story written by Poul Anderson, within his Time Patrol (1960) series. The title alludes to the Latin phrase Carthago delenda est ("Carthage must be destroyed") from our world's Third Punic War. .


The remaining area in which racial preferences are frequently used is employment. Here it is useful to divide public sector preferences from private sector preferences. Public sector preferences are more vulnerable because they are often more overt, and they are subject to attack under both Title VII of the 1964 Civil Rights Act (44) and the Fourteenth Amendment Fourteenth Amendment, addition to the U.S. Constitution, adopted 1868. The amendment comprises five sections. Section 1

Section 1 of the amendment declares that all persons born or naturalized in the United States are American citizens and citizens
, (45) as well as ballot initiatives. But public sector employers provide a relatively small proportion of jobs in this country. Private sector preferences, on the other hand, are often more carefully disguised and harder to discover, and they cannot be challenged constitutionally. It is possible, however, that they will be held to the same constitutional standard as public sector preferences under 42 U.S.C. [section] 1981.

The Justice Department has enforcement responsibility over public sector employment discrimination, and the Equal Employment Opportunity Commission over the private sector. During the Bush Administration, the former attacked racial preferences more aggressively than the latter. The Justice Department's record in this area is the subject of the Appendix to this Essay. (46) I testified before the EEOC EEOC
Equal Employment Opportunity Commission

EEOC n abbr (US) (= Equal Employment Opportunities Commission) → comisión que investiga discriminación racial o sexual en el empleo
 and urged them to challenge racial preferences, (47) but it is extremely unlikely that my testimony persuaded a majority of the commissioners.

The rest of this Part is divided into two subparts. Part III.A discusses current law regarding racial preferences in employment, particularly under Title VII. The bad news is that the law did not advance much during the Bush Administration, but the good news is that the law is already quite hostile to the use of racial preferences and could be used much more aggressively to challenge such preferences than it has been. Part III.B discusses a discrete but important subtopic sub·top·ic  
One of the divisions into which a main topic may be divided.
 here, namely the Department of Labor's regulations implementing Executive Order No. 11,246. (48) The failure of the Bush Administration to change these regulations, which unconstitutionally discriminate on the basis of race, ethnicity, and sex, and which force private employers to do so as well, was perhaps its single most disappointing shortcoming.

A. Lack of Legal Justification for Racial Preferences in Employment

If a business were caught awarding jobs or promotions on the basis of race, ethnicity, or sex today, its managers would likely defend the practice as a means of achieving "diversity." Companies may assume that the diversity rationale would shield them from legal challenge because the Supreme Court has accepted it for university admissions, but this is not true. In fact, the legal justifications for employment discrimination are much weaker. Current statutory and case law strongly oppose preferences in the employment context, and, for a number of reasons, employers that use such preferences are asking for legal trouble.

Unlike universities, companies face heightened vulnerability because hiring and promotion decisions are addressed by Title VII of the 1964 Civil Rights Act, (49) whereas racial and ethnic preferences in student admissions decisions are, for the most part, governed by Title VI. (50) The courts have interpreted the two statutes differently; thus, what is permissible under Title VI is not necessarily permissible under Title VII.

Title VI prohibits "discrimination" on the basis of "race, color, or national origin" in "any program or activity receiving Federal financial assistance." (51) Although the statute's text admits of no exceptions, the Supreme Court has interpreted it as coextensive co·ex·ten·sive  
Having the same limits, boundaries, or scope.

 with the ban on discrimination under the less sharply worded Equal Protection Clause The Equal Protection Clause, part of the Fourteenth Amendment to the United States Constitution, provides that "no state shall… deny to any person within its jurisdiction the equal protection of the laws.  of the Fourteenth Amendment. (52)

Title VII also contains a categorical ban, forbidding any employer to "discriminate" on the basis of "race, color, religion, sex, or national origin" in hiring, firing, or "otherwise ... with respect to [an employee's] compensation, terms, conditions, or privileges of employment." (53) But the Court has not conflated Title VII with the Equal Protection Clause, and accordingly the Court's recent ruling in Grutter that the Equal Protection Clause permits discrimination in the name of "diversity" is inapplicable in·ap·pli·ca·ble  
Not applicable: rules inapplicable to day students.


Will the courts nonetheless create a "diversity" exception to Title VII's prohibition of racial and ethnic discrimination Acts of bias based on the race or ethnicity of the victim.

Racial and ethnic discrimination have had a long history in the United States, beginning with the importation of African slaves in the seventeenth century. The U.S.
? That is very unlikely. To be sure, the Court did allow racial preferences in United Steelworkers United Steelworkers (USW)

historic labour union representing workers in steel, aluminum, and other metallurgical industries for much of the 20th century. In the U.S.
 of America v. Weber, (54) handed down in 1979, and preferences on the basis of sex in Johnson v. Transportation Agency, (55) a 1987 decision. But the rationale the Court approved in these two cases was based not on diversity, but on remedying "manifest ... imbalances" with regard to the discriminated-against groups "in traditionally segregated job categories." (56) In 2009, with every tick of the clock, it is becoming less and less likely that a company could plausibly assert that any imbalance, manifest or not, is traceable to traditional segregation.

Moreover, it is one thing to say that an antidiscrimination statute allows preferences in order to remedy discrimination, but quite another to say that such a statute allows discrimination so long as the employer and the courts think that there is a good reason for it. There is simply no way to reconcile the latter "interpretation" with the text of the statute. (57)

Note also that the Court in Johnson stressed that preferences could be used only to "attain," and not to "maintain," greater balance, (58) but diversity, unlike simple remediation, would require just such impermissible im·per·mis·si·ble  
Not permitted; not permissible: impermissible behavior.

 maintenance. Furthermore, the diversity rationale is premised on a belief in racial ethnic, and gender differences that is quite at odds with the insistence in Title VII that people be judged individually and without regard to stereotypes.

If a diversity exception is created, it is hard to see why other exceptions should not also be put forward. Yet Congress explicitly declined to create even a "bona fide occupational qualification" exception to the statute for race, even as it did so for sex, religion, and national origin. (59) Furthermore, the diversity rationale could be--and frequently is--used to support discrimination against members of racial, religious, and ethnic minority groups and women. If a company's aim is greater "diversity" and less "underrepresentation" in its workforce, then any group that is "overrepresented o·ver·rep·re·sent·ed  
Represented in excessive or disproportionately large numbers: "Some groups, and most notably some races, may be overrepresented and others may be underrepresented" 
" will be on the short end of any preferential hiring or promotion; depending on the company, racial and ethnic minorities and women could all lose out. It seems very unlikely that Congress wrote Title VII to allow such anti-minority and anti-female discrimination so long as an employer could adduce To present, offer, bring forward, or introduce.

For example, a bill of particulars that lists each of the plaintiff's demands may recite that it contains all the evidence to be adduced at trial.
 a business reason for it.

These concerns are not hypothetical. For instance, Xerox not long ago lost an employment discrimination case before the Fifth Circuit. (60) At issue was the company's "Balanced Workforce Initiative," begun "in the 1990's for the stated purpose of insuring that all racial and gender groups were proportionately represented at all levels of the company." (61) The Houston office detected a racial imbalance, and so its general manager took steps "to remedy the disproportionate racial representation" there, "set[ting ting  
A single light metallic sound, as of a small bell.

intr.v. tinged , ting·ing, tings
To give forth a light metallic sound.
] specific racial goals for each job and grade level." (62) The Fifth Circuit found that "the existence of the [Balanced Workforce Initiative] is sufficient to constitute direct evidence of a form or practice of discrimination." (63) After all, "Xerox candidly identified explicit racial goals for each job and grade level," (64) and the evidence "indicate[d] that managers were evaluated on how well they complied with" the initiative's objectives. (65)

This is an appalling company policy and an excellent judicial decision under any circumstances. But here is the kicker: The plaintiffs were African-Americans and the company had concluded that "blacks were over-represented and whites were under-represented." (66)

Thus, it is not surprising that the two federal courts of appeals presented with the diversity rationale in Title VII cases have refused to accept it. In Taxman v. Board of Education, the Third Circuit, sitting en banc [Latin, French. In the bench.] Full bench. Refers to a session where the entire membership of the court will participate in the decision rather than the regular quorum. In other countries, it is common for a court to have more members than are , ruled in favor of a white schoolteacher who had been laid off because her school desired a more "diverse" business-education department. (67) In Messer v. Meno, the Fifth Circuit ruled against the Texas Education Agency, which had "aspired to 'balance' its workforce according to according to
1. As stated or indicated by; on the authority of: according to historians.

2. In keeping with: according to instructions.

 the gender and racial balance of the state." (68) The court stated that "[d]iversity programs, no matter how well-meaning," are not permissible "absent a specific showing of prior discrimination." (69)

The Supreme Court itself has not yet ruled on the issue, but it is unlikely to carve out to make or get by cutting, or as if by cutting; to cut out.
- Shak.

See also: Carve
 a "diversity" exception to Title VII. Such an exception would be inconsistent with the approach and language in the Court's Weber and Johnson decisions, as Professor Kingsley Browne discussed in a 1997 article in Labor Lawyer. (70) A majority of the Court takes statutory text very seriously, and that same majority remains very wary of racial and ethnic preferences. Conservatives are not alone in making this prediction. In 1997, when the Court granted review in Taxman, the civil rights establishment so feared losing on this issue that it raised enough money to pay off the plaintiff's claims and lawyer's fees. (71)

Finally, the D.C. Circuit has rejected the diversity justification, as an insufficiently compelling interest under the Equal Protection Clause in the employment context. This decision, Lutheran Church-Missouri Synod v. FCC (1) (Federal Communications Commission, Washington, DC, The U.S. government agency that regulates interstate and international communications including wire, cable, radio, TV and satellite. The FCC was created under the U.S. , held that the FCC's Equal Employment Opportunity employment guidelines, which had "numerical norms based on proportional representation proportional representation: see representation.
proportional representation

Electoral system in which the share of seats held by a political party in the legislature closely matches the share of popular votes it received.
," triggered strict scrutiny under the Equal Protection Clause (the guidelines' ultimate goal was creating broadcast "programming diversity"). (72) Similarly, the United States District Court for the District of Columbia The United States District Court for the District of Columbia is the United States District Court that hears cases originating in the District of Columbia over which federal courts have original jurisdiction.  struck down portions of the Army's affirmative action promotion policy on equal protection grounds. (73) And recall that Justice Powell's opinion in Bakke recognizing diversity as a compelling interest hinged on the medical school's First Amendment claims to academic freedom, so it was asserting a "countervailing constitutional interest" of its own against the white applicant's interest; (74) that countervailing interest is unavailable in the private employment context. On the other hand, the Seventh Circuit did apply Gratz and Grutter to recognize diversity as a compelling interest in an employment case involving police hires--but this decision involved only an Equal Protection Clause claim, not a Title VII claim. (75)

In sum, the case law for both public and private employment preferences is complicated and ambiguous, but the law is most fairly read as allowing preferences only in increasingly rare situations. (76) Nonetheless, conservatives could use a good Supreme Court decision or two here, too--specifically, a Title VII decision that, although it may leave Weber and Johnson intact, nonetheless rejects the diversity rationale and makes clear that even remedying "manifest racial imbalances in a traditionally segregated job category" (77) through preferences requires some showing of relatively recent discrimination that cannot otherwise be remedied. Barring that, it would be useful to limit at least public employers' discrimination by getting a decision that rejects a "diversity" rationale for employment discrimination as compelling in the constitutional context. (78)

B. The Bush Administration, Executive Order No. 11,246's Regulations, and the Law

Perhaps the most disappointing failure of the Bush Administration with regard to racial preferences involved the regulations (79) that have been promulgated prom·ul·gate  
tr.v. prom·ul·gat·ed, prom·ul·gat·ing, prom·ul·gates
1. To make known (a decree, for example) by public declaration; announce officially. See Synonyms at announce.

 under Executive Order No. 11,246. (80) These regulations, which apply to companies that do a certain level of contracting work for the federal government, flesh out the executive order's requirement that such companies have an "affirmative action" plan. The Center for Equal Opportunity repeatedly met with, wrote to, and cajoled Bush Administration officials at the Department of Labor, the Department of Justice, and the White House to change these regulations, explaining that they were (and are) unconstitutional and bad policy, but nothing was ever done.

It is wrong as a matter of law and policy for the Office of Federal Contracting Compliance Programs (OFCCP OFCCP Office of Federal Contract Compliance Programs (US Department of Labor)
OFCCP Oceanic Fisheries and Climate Change Project
) to require covered federal contractors to set goals and timetables whenever they have a certain degree of "underrepresentation" among minorities and women. (81) The regulations' present approach is at odds with the current case law. It is quite clear that this use of classifications based on race, ethnicity, and sex will trigger strict scrutiny. (82) Mere statistical disparities are not sufficient to justify the use of racial classifications; 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.

Specifically, there is no plausible remedial basis for the government's use of statistical underrepresentation to trigger mandatory goals, timetables, and additional regulatory burdens, let alone for the regulations' treatment of underrepresentation of some groups differently from the underrepresentation of others. The federal government has no recent history of systemic discrimination and has banned discrimination by its contractors since at least 1961, (83) and the private sector as a whole has been prohibited from engaging in such discrimination since the passage of the Civil Rights Act of 1964. (84) Finally, even if there were a remedial basis, the across-the-board approach taken by the regulations would not be narrowly tailored. Statistical disparities can result from nondiscriminatory reasons, and they can almost always be addressed through race- and gender-neutral means.

The current regulations are not only illegal, but as a practical matter result in more, not less, discrimination. The regulations inevitably pressure companies to "get their numbers right" by using surreptitious SURREPTITIOUS. That which is done in a fraudulent stealthy manner.  quotas and other hiring and promotion preferences based on race, ethnicity, and sex. This has been widely remarked upon and is generally accepted (85) (and is the reason that pro-preference groups are so enamored en·am·or  
tr.v. en·am·ored, en·am·or·ing, en·am·ors
To inspire with love; captivate: was enamored of the beautiful dancer; were enamored with the charming island.
 of the current approach). The Center for Equal Opportunity's experience in dealing with companies also leaves no doubt about it; companies we have asked to make a commitment to rejecting preferences regularly cite the regulations as a constraint in this regard. Obviously, the intent and result of the regulations are to push companies to keep an eye on to watch.
- Shak.

See also: Eye
 skin color, national origin, and sex in making employment decisions. Even if this were legally defensible de·fen·si·ble  
Capable of being defended, protected, or justified: defensible arguments.

, it is bad policy because it is unfair and divisive, and it discourages employers from hiring and promoting simply on the basis of productivity.

Accordingly, the Center for Equal Opportunity provided the Department of Labor with a marked-up version of the regulations to show how they could be made to conform to Verb 1. conform to - satisfy a condition or restriction; "Does this paper meet the requirements for the degree?"
fit, meet

coordinate - be co-ordinated; "These activities coordinate well"
 sound law and policy. We sent the following comments along with the suggested changes:
      First, it does not appear that there is any discrimination
   problem with the Executive Order itself, which would not have to be
   changed; indeed, the changes we recommend bring the regulations
   more into line with the Executive Order. The regulations as now
   written are internally inconsistent, because they purport to ban or
   at least not require preferential treatment when in fact they push
   employers in precisely that direction.

      Second, we have focused on 41 C.F.R. 60-2 and 60-4, which are the
   most relevant parts of chapter 60 (there are probably other places
   where conforming changes would need to be made).

      Third, we have kept the changes to a minimum and have aimed only
   at making the regulations nondiscriminatory. There may be other
   improvements that could also be made to the regulations, but we
   kept our focus narrow. (86)

We noted that "the main problem in the current regulations is the required use of 'goals and timetables' when the 'incumbent' percentage of 'minorities or women' is less than 'their availability percentage.'" (87) We removed references to goals and timetables and the special focus on minorities and women, and replaced them instead with straightforward requirements that discrimination against anyone on the basis of race, national origin, or sex be identified, rooted out, and eliminated. We left in the requirements that demographic data be collected, but we clarified that it should be used only as a tool for uncovering actual, illegal discrimination. The only substantial revision was of the four short paragraphs at 41 C.F.R. [section] 60-2.16(a)-(d).

In a nutshell, we changed the centerpiece of OFCCP-mandated affirmative action plans from goals and timetables to a three-pronged commitment to nondiscrimination non·dis·crim·i·na·tion  
1. Absence of discrimination.

2. The practice or policy of refraining from discrimination.

, inclusive recruitment, and addressing evidence of discrimination and correcting discriminatory practices when they are found. We thought the approach we took fit in well with the President's support of "affirmative access" (88) and his repeatedly stated opposition to preferences. (89)

We explained all this again and again, in a series of meetings, letters, e-mails, and phone calls with officials at the Labor Department The Department of Labor (DOL) administers federal labor laws for the Executive Branch of the federal government. Its mission is "to foster, promote, and develop the welfare of the wage earners of the United States, to improve their working , the Justice Department, and the White House that began the first year of the Bush Administration and continued until the last. But nothing happened. (90) Now maybe someone will sue, challenging the regulations as unconstitutional because they clearly are.


At the beginning of the Bush Administration, I drafted a speech that I thought the President ought to give on the topic of affirmative action. Here it is:
      My fellow Americans, I want to speak with you tonight about what
   sort of nation America is, and has been, and will become.

      The American Dream has always been that any American can work
   toward the life he or she wants, and will have the opportunity and
   the freedom to achieve and accomplish what he or she wants in life.
   There will be hurdles to overcome, but one barrier that should not
   be there is the color of an American's skin or where an American's
   ancestors came from.

      We all know that for many years--for centuries--that dream was
   not allowed to many Americans. Too often discrimination because of
   race or ethnicity denied Americans the equality of opportunity they
   should have had.

      We have made enormous strides in the last generation, however, to
   make that dream--the dream that Martin Luther King, Jr., had--a
   reality: to make real the words in the Declaration of Independence
   that all men are created equal, and the freedom that thousands of
   Americans fought and died for in our Civil War.

      In the 1960s, one tool that was created for ending discrimination
   was affirmative action. Its original meaning was to require
   positive steps--affirmative action--to get rid of the unfairness
   that had come to permeate many businesses, governments, and other
   institutions. It had another early meaning, too: making sure that
   everyone was reached out to, not just a few. Those kinds of
   affirmative action were and are good, and should be continued.

      But somehow another kind of affirmative action began, too--one
   that twisted and distorted the original ideal of the civil rights
   movement into its exact opposite. That kind of affirmative action
   was not ending discrimination but requiring it, the only difference
   being that there would be a new set of new victims.

     This kind of affirmative action was well intentioned and maybe
   even necessary at the time. But the time has come to end it.

      I think that all Americans would agree that our goal should be to
   have a society where no one--white or black, Asian or Hispanic,
   American Indian or Arab American--should be favored or penalized
   because of race or ethnicity. The only question is, do we follow
   that principle now, or wait until some unknown, uncertain future

      I say the time is now. A 17-year-old applying to college today is
   not a former slave and did not live during the Jim Crow era. He or
   she was born in 1984, twenty years after the Civil Rights Act of
   1964 was passed. An 18-year-old who joined the workforce when that
   statute became law would be 55 years old today.

      I know that discrimination still exists. But, unfortunately,
   there will always be some discrimination. And I do not think that
   the best way to fight bias is with more bias. We have laws on the
   books that prohibit discrimination, and I pledge to you that I will
   aggressively enforce them and, where necessary, strengthen them.

      Nor do I deny that too many Americans have limited opportunities
   because of the circumstances into which they are born. Some are
   members of minority groups and some are not, just as some
   well-to-do people are members of minority groups and some are not.
   Some disadvantaged children may be able to trace their
   circumstances to discrimination, others might not, but, really,
   what difference does it make whether the unfairness is of one kind
   or another? No child deserves to be denied an opportunity by any
   accident of birth, and no child should be left behind.

      We will not make race relations better by picking winners and
   losers based on race. If the government creates double standards,
   or triple or quadruple standards, by ranking blacks ahead of
   Hispanics ahead of Asians ahead of whites, it will create only
   resentment and stigmatization.

      And besides, the use of racial and ethnic preferences is just
   plain unfair. It is unfair when a school or college asks a student
   who wants to go there, what color are you? It is unfair when an
   employer asks an applicant, where did your ancestors come from? It
   is unfair when the government asks a contractor, or a prime
   contractor asks a subcontractor, what is your race?

      It is unfair to those who are denied a spot in school, or a job,
   or a contract. And it is insulting to those who are supposedly
   benefited. African Americans have made enormous contributions to
   our national life and culture for hundreds of years in the teeth of
   slavery and Jim Crow--the worst discrimination you can imagine. And
   now we are telling them: You cannot be expected to succeed unless
   we lower the bar for you.

      I don't buy it. I reject the soft bigotry of low expectations. No
   child should be left behind, but every child and every American
   will be held to the same standards as every other one of his

      There is another reason why racial and ethnic preferences are
   wrong. It requires the government to pigeonhole people as if
   everyone were either pure black or white, Hispanic or non-Hispanic,
   just one or the other. The truth is, as we learned in the latest
   census, not only is the American population increasingly
   multiracial and multiethnic, but so are Americans as individuals.

      This is true of my own family, it is true of Tiger Woods, and it
   is true of millions of Americans. Few of us are just black, or just
   Hispanic, or just Native American. And so how can it make sense for
   the government to grant preferences as if we were? And how is the
   government supposed to rank who is the most deserving when there is
   an infinite number of racial and ethnic combinations, and that
   variety keeps growing as America does?

      Most Americans believe as I do that it was always wrong to
   penalize people for their skin color or ancestry, and most
   Americans also believe that it is wrong to do so now. We can end
   the newer discrimination and still remain vigilant that
   discrimination of the old kind is punished, too. Racial profiling
   is wrong whether it is police stopping a black teenager or colleges
   telling an Asian teenager that they have "too many" of them already.

      We should continue to have the kind of affirmative action that
   means taking special steps to root out prejudice and reaching out
   to everyone. But we should end the affirmative action that gives
   preferences to some over others because of race or ethnicity.

      When Thurgood Marshall was the lead attorney in Brown v. Board of
   Education, he wrote: "Distinctions by race are so evil, so
   arbitrary and insidious that a state bound to defend the equal
   protection of the laws must not allow them in any public sphere."
   In that landmark case he insisted that "classifications and
   distinctions based upon race or color have no moral or legal
   validity in our society." He was right.

      We are all Americans. God loves us all, and wants us to love one
   another no matter what our outward appearance. There is no room for
   bigotry in the heart of a patriotic American, and our government
   should likewise be color-blind. From now on, I pledge to you that
   it will be.

      Thank you, and God bless America. (91)

Well, needless to say, the speech was never given. But hope springs eternal: Perhaps President Obama will deliver it. He has, after all, stated his misgivings about racial preferences, acknowledging, for instance, that his daughters probably should not enjoy a preference in university admissions over disadvantaged students who happen to be white. (92)

As we await that speech, though, the struggle against racial preferences remains a multi-front battle. State ballot initiatives and even state legislation ought to be pursued, and the issue must be kept before the court of public opinion.

The issue should especially be kept before the courts. In the short term, significant progress will require good judicial decisions. The good news is that there are strong legal arguments to be made against racial preferences in all the major areas where they are found. The bad news is that we must get these issues before the courts quickly because their composition is likely to get worse in a hurry. In short, let's sue!

(1.) This Essay will refer only to "racial preferences" with the understanding that ethnic and gender preferences are generally included as well.

(2.) 539 U.S. 244 (2003) (concerning undergraduate admissions).

(3.) 539 U.S. 306 (2003) (concerning law school admissions).

(4.) MICH v. i. 1. To lie hid; to skulk; to act, or carry one's self, sneakingly. . CONST CONST Construction
CONST Constant
CONST Construct(ed)
CONST Constitution
CONST Under Construction
CONST Commission for Constitutional Affairs and European Governance (COR) 
. art. I, [section] 26.

(5.) See, e.g., Letter from Brian A. Benczkowski, Principal Deputy Assistant Att'y Gen., Office of Legislative Affairs, U.S. Dep't of Justice, to U.S. Rep. Henry A. Waxman, Chairman, Comm. on Oversight & Gov't Reform (Apr. 30, 2008) (on file with Author) (discussing the Senior Executive Service Diversity Assurance Act, H.R. 3774, 110th Cong. (2007)).

(6.) See Voting Rights Act of 1965, 42 U.S.C. [section] 1973c (2006).

(7.) See 152 CONG. REC. H5207 (daily ed. July 13, 2006) (390-33 House vote); 152 CONG. REC. S8012 (daily ed. July 20, 2006) (98-0 Senate vote). Note that many Republicans like racial gerrymandering gerrymandering

Drawing of electoral district lines in a way that gives advantage to a particular political party. The practice is named after Massachusetts Gov. Elbridge Gerry, who submitted to the state senate a redistricting plan that would have concentrated the voting
. After cramming lots of black voters into a relatively few districts, the "bleached" neighboring districts tend to vote Republican. See ABIGAIL M. THERNSTROM, WHOSE VOTES COUNT?: AFFIRMATIVE ACTION AND MINORITY VOTING RIGHTS 234 (1987).

(8.) Fannie Lou Hamer Fannie Lou Hamer (born Fannie Lou Townsend on October 6, 1917 – March 14, 1977) was an American voting rights activist and civil rights leader.

She was instrumental in organizing Mississippi's "Freedom Summer" for the Student Nonviolent Coordinating Committee
, Rosa Parks Noun 1. Rosa Parks - United States civil rights leader who refused to give up her seat on a bus to a white man in Montgomery (Alabama) and so triggered the national Civil Rights movement (born in 1913)
, and Coretta Scott King Coretta Scott King (April 27, 1927 – January 30, 2006) was the wife of the assassinated civil rights activist Martin Luther King, Jr., and a noted civil rights leader, author, singer, and founder and former president of the King Center in Atlanta, Georgia.  Voting Rights Act Reauthorization and Amendments Act of 2006, Pub. L. No. 109-246, 120 Stat. 577.

(9.) As it happens, such a lawsuit is currently before the Supreme Court. See Nw. Austin Mun. Util. Dist. No. One v. Mukasey, 573 F. Supp. 2d 221 (D.D.C. 2008), prob. juris, noted, 129 S. Ct. 894 (2009) (mem.). My colleague Linda Chavez and I testified against the constitutionality of the relevant sections of the Voting Rights Act when it was up for reauthorization in 2006, later publishing a law review article based on that testimony. Roger Clegg Roger Clegg is the President and General Counsel of the Center for Equal Opportunity. Prior to joining the CEO Clegg served in a variety of capacities within both the Reagan and George H.W.  & Linda Chavez, An Analysis of the Reauthorized Sections 5 and 203 of the Voting Rights Act of 1965: Bad Policy and Unconstitutional, 5 GEO. J.L. & PUB. POL'Y 561 (2007). The Bush Administration defended the constitutionality of section 5 in Northwest Austin, but I do not hold this against it. Generally, the executive branch feels compelled to defend the constitutionality of federal statutes unless there is no colorable argument for doing so or the law in question undermines the executive branch's own authority. And I give the Administration credit for filing a decent amicus brief in Bartlett v. Strickland, No. 07-689, slip op. (U.S. Mar. 9, 2009). That brief urges a reading of the Voting Rights Act that will limit the amount of racial gerrymandering required under section 2, 42 U.S.C. [section] 1973 (2006). See Brief for the United States United States, officially United States of America, republic (2005 est. pop. 295,734,000), 3,539,227 sq mi (9,166,598 sq km), North America. The United States is the world's third largest country in population and the fourth largest country in area.  as Amicus Curiae amicus curiae

(Latin: “friend of the court”) One who assists a court by furnishing information or advice regarding questions of law or fact. A person (or other entity, such as a state government) who is not a party to a particular lawsuit but nevertheless has a
 Supporting Affirmance, Bartlett (No. 07-689). The Administration also deserves credit for its willingness to enforce the Voting Rights Act to protect white voters from discrimination. See United States v. Brown, No. 07-60588, 2009 WL 485709 (5th Cir. Feb. 27, 2009).

(10.) See, e.g., W.H. Scott Constr. Co. v. City of Jackson, 199 F.3d 206 (5th Cir. 1999); Webster v. Fulton County
  • Fulton County is the name of a number of counties in the United States of America, most named for Robert Fulton, inventor of the first practical steamboat:
, 51 F. Supp. 2d 1354 (N.D. Ga. 1999), aff'd, 218 F.3d 1267 (11th Cir. 2000); see George R. La Noue, A New Era in Federal Preferential Contracting? Rothe Development Corporation v. U.S. Department of Defense and Department of the Air Force The executive part of the Department of the Air Force at the seat of government and all field headquarters, forces, Reserve Components, installations, activities, and functions under the control or supervision of the Secretary of the Air Force. Also called DAF. See also Military Department. , ENGAGE, Feb. 2009, at 13, 13.

(11.) See Hershell Gill Consulting Eng'rs, Inc. v. Miami-Dade County, 333 F. Supp. 2d 1305, 1335-38 (S.D. Fla. 2004).

(12.) See Roger Clegg, Equality Under the Law, in BRINGING JUSTICE TO THE PEOPLE: THE STORY OF THE FREEDOM-BASED PUBLIC INTEREST LAW MOVEMENT 97-125 (Lee Edwards ed., 2004); see also Pac. Legal Found., Issues & Cases: Race and gender-based preferences, (last visited Mar. 18, 2009).

(13.) 515 U.S. 200, 227 (1995).

(14.) 545 F.3d 1023, 1035-36, 1050 (Fed. Cir. 2008).

(15.) See Women-Owned Small Business Federal Contract Assistance Procedures, 72 Fed. Reg. 73,285 (proposed Dec. 27, 2007) (to be codified cod·i·fy  
tr.v. cod·i·fied, cod·i·fy·ing, cod·i·fies
1. To reduce to a code: codify laws.

2. To arrange or systematize.
 at 13 C.F.R. pts. 121, 125, 127, 134).

(16.) See supra A relational DBMS from Cincom Systems, Inc., Cincinnati, OH ( that runs on IBM mainframes and VAXs. It includes a query language and a program that automates the database design process.  note 9.

(17.) See 407 F.3d 983, 996 (9th Cir. 2005); George R. La Noue, Narrow Tailoring Narrow tailoring (also known as narrow framing) is a legal phrase referring to the doctrine that laws should be written specifically to fulfill only the goals of that particular law.  the Federal Transportation DBE DBE
Dame Commander of the British Empire

DBE Dame (Commander of the Order) of the British Empire
 Program, ENGAGE, Mar. 2006, at 20, 21.

(18.) Brief for the Respondents at 19, 38-39, Adarand Constructors, Inc. v. Mineta, 534 U.S. 103 (2001) (No. 00-730).

(19.) See, e.g., Lutheran Church-Mo. Synod v. FCC, 154 F.3d 487 (D.C. Cir. 1998).

(20.) Adarand Constructors, Inc. v. Mineta, 534 U.S. 103 (2001) (dismissing certiorari certiorari

In law, a writ issued by a superior court for the reexamination of an action of a lower court. The writ of certiorari was originally a writ from England's Court of Queen's (King's) Bench to the judges of an inferior court; it was later expanded to include writs
 as improvidently im·prov·i·dent  
1. Not providing for the future; thriftless.

2. Rash; incautious.

im·provi·dence n.

(21.) See Roger Clegg, The Use of Disparity Studies to Justify Racial and Ethnic Preferences in Government Contracting, Prepared Statement of Roger Clegg, Vice President and Gen. Counsel, Ctr. for Equal Opportunity (Dec. 16, 2005), in U.S. COMM'N ON CIVIL RIGHTS, DISPARITY STUDIES AS EVIDENCE OF DISCRIMINATION IN FEDERAL CONTRACTING: A BRIEFING BEFORE THE UNITED STATES COMMISSION ON CIVIL RIGHTS The Commission on Civil Rights (USCCR) is an independent agency of the United States government.

The Commission on Civil Rights is composed of eight Commissioners, who provide direct leadership to the organization, the Staff Director, and a professional career staff.
 HELD IN WASHINGTON, D.C., DECEMBER 16, 2005, at 71, 73 (2006), available at The same approach should be used with respect to subcontracting: Rather than requiring prime contractors to use racial preferences in subcontracting, we should require them to publish subcontracting opportunities broadly, to keep records (which could later be audited) of the responses and bids they receive, and to explain and justify any decision not to accept the lowest bid. Racial discrimination should be forbidden and punished.


(23.) Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 307 (1978) (opinion of Powell, J.).

(24.) Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 127 S. Ct. 2738, 2768 (2007).

(25.) Parents Involved, 127 S. Ct. 2738.

(26.) See Roger Clegg, A Good--If Mixed Bag ... with a puzzle inside, NAT'L REV. ONLINE, July 5, 2007, ?q=ZDFjODM4NDM NDM Nonfat Dry Milk
NDM National Democratic Movement
NDM Network Data Mover
NDM Natural Disaster Management
NDM Newspaper Designated Market
NDM Near Dry Machining (applying a very small amount of lubricant in lieu of flood coolant) 
4NjklZm JiZDYaNWNkMmEyYjgyOTRkYzk=.

(27.) The Center for Equal Opportunity, for instance, has documented the use of racial and ethnic preferences in undergraduate, medical school, and law school admissions all over the country. The studies are available at Center for Equal Opportunity, Preferences in College Admission, 78/100/(last visited Mar. 18, 2009).

(28.) See Press Release, Ctr. for Equal Opportunity, CEO (1) (Chief Executive Officer) The highest individual in command of an organization. Typically the president of the company, the CEO reports to the Chairman of the Board.  Proposes "Racial Preference Disclosure Legislation" (Feb. 16, 2004), available at content/view/453/119/. The U.S. Commission on Civil Rights endorsed such legislation in its briefing report Affirmative Action in American Law Schools. U.S. COMM'N CIVIL RIGHTS, AFFIRMATIVE ACTION IN AMERICAN LAW SCHOOLS 6, 143 (2007), available at

(29.) Such initiatives have passed in California, Michigan, Nebraska, and Washington. See CAL. CONST. art. I, [section] 31; MICH. CONST. art. I, [section] 26; NEB. CONST. art. I, [section] 30; WASH. REV. CODE [section] 49.60.400. See generally CAROL M. ALLEN, ENDING RACIAL PREFERENCES: THE MICHIGAN STORY 11-20, 26-34 (2008) (discussing the California and Washington initiatives); id. at 47-154 (discussing the Michigan initiative). The threat of such an initiative also led Florida's governor to end preferences in public university admissions by executive order. See id. at 35-39.

(30.) Brief for the United States as Amicus Curiae Supporting Petitioner, Grutter v. Bollinger, 539 U.S. 306 (2003) (No. 02-241); Brief for the United States as Amicus Curiae Supporting Petitioners, Gratz v. Bollinger, 539 U.S. 244 (2003) (No. 02-516).

(31.) See PETER SCHMIDT, COLOR AND MONEY: HOW RICH WHITE KIDS ARE WINNING THE WAR OVER COLLEGE AFFIRMATIVE ACTION 190-91 (2007); Roger Clegg, Affirmative Opportunity, NAT'L REV. ONLINE, Dec. 4, 2004, ?q=NmM2NzkwN2IOZmE1MzQINTJkYzE5YzVhNDVkZGU2OGE OGE Office of Government Ethics
OGE Oklahoma Gas and Electric
OGE Out of Ground Effect
OGE Operational Ground Equipment
OGE Outdoor Gear Exchange
OGE Österreichische Gesellschaft für Erdbebeningenieurwesen Und Baudynamik

(32.) See, e.g., Jonathan D. Glater, Colleges Open Minority Aid to All Comers all who come, or offer, to take part in a matter, especially in a contest or controversy.
- Bp. Stillingfleet.

See also: Comer
, N.Y. TIMES, Mar. 14, 2006, at A1; Peter Schmidt, Not Just for Minority Students Anymore, CHRON CHRON Chronicles
CHRON Chronology
EDUC Commission for Culture and Education (COR) 
. (Wash. D.C.), Mar. 19, 2004, at 17 [hereinafter here·in·af·ter  
In a following part of this document, statement, or book.


Formal or law from this point on in this document, matter, or case

Adv. 1.
 Schmidt, Not Just for Minority Students Anymore]; Peter Schmidt, The Education Department's Lawyers Appear to be Taking a Dim View of Minority Scholarship Programs, CHRON. HIGHER EDUC. (Wash. D.C.), Apr. 16, 2004, at A23; Peter Schmidt & Jeffrey R. Young, MIT MIT - Massachusetts Institute of Technology  Opens 2 Programs to White and Asian Applicants in Response to Federal Inquiry, CHRON. HIGHER EDUC., Feb. 11, 2003, at A31; see also Peter Schmidt, Education Department Pressures Wisconsin to Open Scholarship Program to White Students, CHRON. HIGHER EDUC. (Wash. D.C.), Dec. 3, 2004, 12/2004120302n.htm; Jeffrey R. Young, Princeton Ends Minority-Students-Only Policy for Summer Institute, CHRON. HIGHER EDUC. (Wash. D.C.), Feb. 7, 2003,

(33.) See Scott Jaschik, Defeat for Affirmative Action, INSIDE HIGHER ED Inside Higher Ed is a free daily online publication that covers a variety of college and university issues. The publication and jobs service, headquartered in Washington, D.C. , Feb. 15, 2007,; Press Release, Pamela DiSalvo Lepley, Va. Commonwealth Univ. Commc'ns & Pub. Affairs, Public Statement: Settlement Reached in Urban Journalism Workshop Lawsuit (Feb. 14, 2007), available at

(34.) 42 U.S.C. [section] 2000d (2006).

(35.) Grutter v. Bollinger, 539 U.S. 306, 334 (2003); Gratz v. Bollinger, 539 U.S. 244, 270-71 (2003).

(36.) Grutter, 539 U.S. at 337.

(37.) Gratz, 539 U.S. at 271.

(38.) 127 S. Ct. 2738, 2753-54 (2007) (citations omitted) (internal quotation marks quotation marks
Noun, pl

the punctuation marks used to begin and end a quotation, either `` and '' or ` and '

quotation marks nplcomillas fpl


(39.) See Kevin Rothstein, Harvard opens biz program to whites, BOSTON HERALD The Boston Herald is a tabloid format newspaper, though not a tabloid in the traditional sense, and is the smaller of the two big dailies in Boston, Massachusetts (the other being The Boston Globe). , Feb. 18, 2004, at 18; Schmidt & Young, supra note 32.

(40.) See Schmidt & Young, supra note 32.

(41.) Schmidt, Not Just for Minority Students Anymore, supra note 32.

(42.) Glater, supra note 32.

(43.) For a discussion of some steps in this direction, see Roger Clegg, Attacking "Diversity": A Review of Peter Wood's Diversity: The Invention of a Concept, 31 J.C. & U.L. 417, 424-36 (2005). See also George La Noue & Kenneth L. Marcus, "Serious Consideration" of Race-Neutral Alternatives in Higher Education, 57 CATH CATH Catholic
CATH Cathedral
CATH Cathode
CATH Autonomous Haitian Workers (Haiti)
CATH Center for Applied Technologies in the Humanities (Virginia Tech) 
. U. L. REV. 991 (2008).

(44.) 42 U.S.C. [section][section] 2000e to 2000e-17 (2006).

(45.) U.S. CONST. amend. XIV.

(46.) I previously delivered a paper, available as an Appendix to this Essay, comparing the employment discrimination lawsuits brought by the Justice Department's Civil Rights Division in the Clinton and George W. Bush Administrations and focusing specifically on "affirmative discrimination" and "disparate impact A theory of liability that prohibits an employer from using a facially neutral employment practice that has an unjustified adverse impact on members of a protected class. A facially neutral employment practice is one that does not appear to be discriminatory on its face; rather it is " race, ethnicity, and sex discrimination cases. Roger Clegg, Employment Antidiscrimination Policies in the Clinton and Bush Administration (June 2006) (unpublished paper), available at 2009/04/clegg-appendix.pdf. It concluded that "the Clinton administration Noun 1. Clinton administration - the executive under President Clinton
executive - persons who administer the law
 did not like to bring reverse discrimination cases, which the Bush administration was sometimes willing to bring; and the Clinton administration appeared to be more willing to bring disparate impact cases than the Bush administration has been." Clegg, supra, at 3. Although I presented the paper in June 2006, there were no dramatic reversals in policy during the last part of the Bush Administration. Disparate impact lawsuits were relatively rare, and there was the occasional challenge to racial preferences, right up to January 2009. See Press Release, Dep't of Justice, Justice Department Files Lawsuit Alleging Race Discrimination Against Job Applicants by City of Gary, Ind. (Jan. 12, 2009), available at January/09-crt-026.html.

(47.) Roger Clegg, President & Gen. Counsel, Ctr. for Equal Opportunity, Testimony before the Equal Employment Opportunity Commission (Feb. 28, 2007), available at doc_view&gid=148&Itemid=54.

(48.) 3 C.F.R. 167 (1965 Supp.).

(49.) 42 U.S.C. [section][section] 2000e to 2000e-17 (2006).

(50.) 42 U.S.C. [section][section] 2000d to 2000d-4a (2006).

(51.) 42 U.S.C. [section] 2000d (2006).

(52.) U.S. CONST. amend. XIV, [section] 1.

(53.) 42 U.S.C. [section] 2000e-2(a)(1) (2006).

(54.) 443 U.S. 193 (1979).

(55.) 480 U.S. 616 (1987).

(56.) Weber, 443 U.S. at 197.

(57.) This point--and others regarding why there is no "diversity" exception to Title VII--are made by Professor Kingsley R. Browne in his article Nonremedial Justifications for Affirmative Action in Employment: A Critique of the Justice Department Position, 21 LAB. LAW. 451, 461-72 (1997). In addition, Professor Nelson Lund has argued that Congress, in enacting the Civil Rights Act of 1991, implicitly rejected even the remedial justification for an exception to Title VII. Nelson Lund, The Law of Affirmative Action in and after the Civil Rights Act of 1991: Congress Invites Judicial Reform, 6 GEO. MASON L. REV. 87 (1997).

(58.) Johnson, 480 U.S. at 639.

(59.) See 42 U.S.C. [section] 2000e-2(e) (2006).

(60.) Frank v. Xerox Corp., 347 F.3d 130 (5th Cir. 2003).

(61.) Id. at 133.

(62.) Id.

(63.) Id. at 137.

(64.) Id.

(65.) Id.

(66.) Id. To its credit, the Equal Employment Opportunity Commission cited this case in the race-and-color section of its Compliance Manual. TITLE VII/AEDEA/EPA DIV., OFFICE OF LEGAL COUNSEL, EEOC COMPLIANCE MANUAL 15-34 (2006), available at

(67.) 91 F.3d 1547 (3d Cir. 1996), cert. granted sub nom. Piscataway Twp. Bd. of Educ. v. Taxman, 521 U.S. 1117 (1997), dismissed per stipulation, 522 U.S. 1010 (1997).

(68.) 130 F.3d 130, 133 (5th Cir. 1997).

(69.) Id. at 136.

(70.) See Browne, supra note 57.

(71.) See Abby Goodnough, Financial Details Are Revealed In Affirmative Action Settlement, N.Y. TIMES, Dec. 6, 1997, at B5.

(72.) 154 F.3d 487, 492-93 (D.C. Cir. 1998).

(73.) See Saunders v. White, 191 F. Supp. 2d 95, 123-34 (D.D.C. 2002).

(74.) See Regents of the Univ. of Calif. v. Bakke, 438 U.S. 265, 313 (1978) (opinion of Powell, J.).

(75.) Petit v. City of Chicago, 352 F.3d 1111 (7th Cir. 2003).

(76.) See Roger Clegg, Someone Should Sue, ENGAGE, Oct. 2007, at 25.

(77.) Weber v. United Steelworkers of Am., 443 U.S. 193, 197 (1979).

(78.) This Term the Supreme Court will decide Ricci v. DeStefano, 530 F.3d 87 (2d Cir. 2008), cert. granted, 129 S. Ct. 894 (Jan. 9, 2009) (No. 08-328), a case that may shed important light on the limits of politically correct disparate treatment. The Bush Administration did not participate in the case while it was in the lower courts, but it should have.

(79.) 41 C.F.R. [section][section] 60-1.1 to 60-999.2 (2008).

(80.) 3 C.F.R. 167 (1965 Supp.).

(81.) 41 C.F.R. [section][section] 60-2.1 to 60-2.35, 60-4.1 to 60-4.9 (2008).

(82.) See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995) ("[A]ll racial classifications, imposed by whatever federal, state, or local governmental actor, must be analyzed by a reviewing court under strict scrutiny."); Lutheran Church-Mo. Synod v. FCC, 141 F.3d 344, 354 (D.C. Cir. 1998) ("[W]e do not think it matters whether a government hiring program imposes hard quotas, soft quotas, or goals.... Strict scrutiny applies....").

(83.) Exec. Order No. 10,925, 3 C.F.R. 1977 (1961).

(84.) See Civil Rights Act of 1964, Pub. L. 88-352, [section][section] 701-716, 78 Stat. 241, 253-66 (codified as amended at 42 U.S.C. [section][section] 2000e to 2000e-17 (2006)).

(85.) See, e.g., NATHAN GLAZER Nathan Glazer (b. 1924) is an American sociologist, who taught at UC Berkeley and Harvard University. He is a domestic policy neoconservative, editor of the defunct policy journal The Public Interest, and formerly a frequent contributor to The New Republic. , Affirmative Discrimination: For and Against, in ETHNIC DILEMMAS, 1964-1982, at 159 (1983); STEPHAN THERNSTROM & ABIGAIL THERNSTROM, AMERICA IN BLACK AND WHITE 428-29 (1997).

(86.) Memorandum from Ctr. for Equal Opportunity to U.S. Dep't of Labor (July 13, 2005) (on file with Author).

(87.) Id.

(88.) Comm'n on Presidential Debates, Debate Transcript: The Third Gore-Bush Presidential Debate (Oct. 17, 2000), available at trans2000c.html.

(89.) See Press Release, Ctr. for Equal Opportunity, Bush Is On Record as Opposing Racial and Ethnic Preferences (Jan. 2, 2003), available at content/view/460/119.

(90.) The discussion in this Part is not meant to suggest that the Bush Administration did not administer and enforce the Executive Order and its regulations in a way less likely to drive employers toward preferential treatment than the Clinton Administration had. See, e.g., Dennis Welch, U.S. Penalizes Pro-Hispanic Hiring, ARIZ ARIZ Arizona (old style) . DAILY STAR, Feb. 2, 2007, available at But the overarching o·ver·arch·ing  
1. Forming an arch overhead or above: overarching branches.

2. Extending over or throughout: "I am not sure whether the missing ingredient . . .
 pro-preference framework was left in place.

(91.) A slightly edited version of this speech was later published as Roger Clegg, Words of Advice, NAT'L REV. ONLINE, Jan. 10, 2003, clegg/clegg011003.asp.

(92.) Interview by George Stephanopoulos with Senator Barack Obama on This Week with George Stephanopoulos (ABC television broadcast May 13, 2007).

ROGER CLEGG, President and General Counsel, Center for Equal Opportunity; J.D., Yale Law School Yale Law School, or YLS, is the law school of Yale University in New Haven, Connecticut. Established in 1843, the school offers the J.D., LL.M., J.S.D., and M.S.L. degrees in law. It also hosts visiting scholars and several legal research centers. , 1981; B.A., Rice University, 1977. The Author thanks George La Noue for reviewing a draft of this Essay and his helpful suggestions on it.
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Author:Clegg, Roger
Publication:Harvard Journal of Law & Public Policy
Date:Jun 22, 2009
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