April 15, 2014
By Elizabeth Slattery and Hans A. von Spakovsky
The federal government wittingly and unwittingly endorses a great deal of racial discrimination in America. A 2011 report by the Congressional Research Service catalogued literally hundreds of government-wide and agency-specific set-aside and preference programs and grants throughout the entire executive branch that amount to some form of racial discrimination.
If Congress wants to do something about it, and drastically reduce the amount of discrimination that goes on, it should look carefully at each of four bills that we — working at the Center for Equal Opportunity and the Heritage Foundation — recently drafted as model legislation. (The bills are described in detail here.)
Banning Racial Preferences
The most straightforward way Congress could act is by banning racial preferences in all federally funded programs — public employment, education, contracting, etc. — and in federal civil-rights protections. Federal law frequently states that the government may not discriminate based on race, but plenty of other federal statutes explicitly do so. Congress could clarify these existing laws, which judges and bureaucrats have distorted, by simply banning the use of preferences.
Congress could repeal any existing provisions that authorize preferences or other forms of discrimination, ideally at the same time the new law is passed, but barring that, the following language should be added to the model bill: “All statutes, regulations, and agency practices shall be construed in a manner consistent with this law, and provisions that might be read to authorize preferences or discrimination are hereby repealed or amended to authorize only consideration of factors other than race, color, ethnicity, or national origin.”
Requiring Disclosure of Racial Preferences in University Admission
As long as university officials take race into account in admissions decisions, we should require universities to make public their use of such preferences. If universities receive federal funding, they should be required to report annually in detail on whether and how race, color, and national origin factor into the student-admissions process.
The Supreme Court has upheld the use of race to achieve the “educational benefits of a more diverse student body” as constitutionally permissible — at least for now, subject to numerous restrictions. Universities should not be able to do so in secret and without taking pains to satisfy the Supreme Court’s requirements.
The U.S. Commission on Civil Rights endorsed this approach, recommending “sunshine” legislation to the president and Congress in a 2006 report. Likewise, Representative Steve King (R., Iowa) introduced similar legislation that would require universities that receive federal financial assistance to disclose data to the U.S. Department of Education on how race, color, and national origin factor into admissions decisions. As Supreme Court Justice Louis D. Brandeis once said, sunshine is “the best of disinfectants.” Or look at it this way: Even those who favor racial preferences in university admissions should understand that they should not be done in secret, and in violation of the limits that the Supreme Court has put on them, at taxpayer-funded schools.
Eliminating Disparate-Impact Claims
The “disparate impact” approach to civil-rights enforcement results in race-based preferential treatment — often intentionally so. Eliminating such claims is therefore another way to help curb the use of racial and ethnic preferences.
In brief, an action that results in racially disproportionate results is considered to have an illegal disparate impact, even if the action is neutral on its face, in its intent, and in its application. This is not racial discrimination by any reasonable definition, and it forces employers, landlords, schools, and others either to discard legitimate criteria and selection procedures (for example, a physical or written test for firefighters or police officers) or to avoid racial disproportions by hiring, leasing, or disciplining (or designing tests and other selection criteria) with an eye to skin color, or both. The Obama administration loves this approach, alas.
Fortunately, most civil-rights laws have no such “disparate impact” provisions; rather, they prohibit actual discrimination (“disparate treatment”). The laws have been expanded, however, through agency interpretation and activist court rulings to include “disparate impact.” As Justice Antonin Scalia has explained, disparate impact “place[s] a racial thumb on the scales, often requiring employers to evaluate the racial outcomes of their policies, and to make decisions based on (because of) those racial outcomes.” Thus, Congress should make clear that laws prohibiting disparate treatment do not extend to mere disparate impact.
Defense to Disparate-Impact Claims
Our third model bill does not cover Title VII of the Civil Rights Act of 1964 and Sections 2 and 5 of the Voting Rights Act of 1965, because they explicitly allow disparate-impact causes of action. Ideally, Congress should amend those laws to eliminate those causes of action. (Section 2 of the Voting Rights Act doesn’t exactly use disparate impact: It uses a “results” test, which is not as bad, but it raises many of the same problems, as explained in another recent Heritage paper.)
At the very least, Congress could amend these statutes to provide defendants with an affirmative defense against disparate-impact claims: Where people can demonstrate that they acted with a nondiscriminatory intent when engaging in conduct that resulted in a disparate impact, they should not be liable for discrimination based on a disparate-impact claim.
Justice Scalia suggested such as approach in his concurring opinion in the New Haven firefighters case, noting that while disparate impact might be defended as “an evidentiary tool used to . . . ‘smoke out’ . . . disparate treatment,” existing laws that authorize disparate-impact claims “sweep too broadly . . . since they fail to provide an affirmative defense for good-faith [conduct].” Indeed, “it is one thing to free plaintiffs from providing an employer’s illicit intent, but quite another to preclude the employer from proving that its motives were pure and its actions reasonable.”
Discrimination on the basis of race and ethnicity is unconstitutional, unlawful, and morally repugnant, yet the practice is rife throughout federal law and government programs.
Jobs should go to the most qualified individuals; contracts should be awarded to the lowest bidders who are qualified; the students who are most likely to excel academically should be admitted to taxpayer-funded universities; and all should be protected equally from discrimination. Congress should eliminate racial discrimination in federal contracting and employment and in federally funded programs, including educational institutions; require disclosure of preferential university-admission policies; and limit and clarify when claims of “disparate impact” may be brought.
Editor's Note: Roger Clegg also contributed to this commentary
- Hans A. von Spakovsky is manager of the Election Law Reform Initiative and senior legal fellow in the Edwin Meese III Center for Legal and Judicial Studies at the Heritage Foundation.
- Elizabeth H. Slattery is senior legal policy analyst in the Meese Center.
Originally appeared in the National Review Online
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Hans A. von Spakovsky
Manager, Election Law Reform Initiative and Senior Legal Fellow
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