SCOTUS & EEOC Commissioner: Civil Rights Law Actually Prohibits Racial Discrimination

Not Just Discrimination Against Groups Progressives Consider Deserving of Special Protections

The Federal Equal Employment Opportunity Commission describes its job this way:

The U.S. Equal Employment Opportunity Commission (EEOC) is responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person's race, color, religion, sex (including pregnancy and related conditions, gender identity, and sexual orientation), national origin, age (40 or older), disability or genetic information.

A member of the commission, Andrea Lucas, although not writing in her official capacity, had a very interesting essay over at Reuters. It included these snippets:

Most companies don't use the label "affirmative action" in their diversity programs. Nevertheless, from the focus on ESG to the rise of "equity" parlance in corporate diversity initiatives, companies remain under heavy pressure to take race-conscious employment actions.

This pressure has been enabled by common misunderstandings of the civil rights rules governing employers, influenced by the previous status of affirmative action in higher education admissions. However, the agency where I serve as a Commissioner, the U.S. Equal Employment Opportunity Commission, is charged with enforcing equal opportunity at work, not "equity." Our mission is to prevent and eliminate discrimination, not impose "equitable" outcomes.

Allow me the pleasure of repeated that last just to make sure you noticed and took it in:

The EEOC is charged with enforcing equal opportunity at work, not "equity." Our mission is to prevent and eliminate discrimination, not impose "equitable" outcomes.

She continues:

There are distinct but similar statutory sections of the Civil Rights Act — Title VI and Title VII, respectively — that govern the education and employment contexts. Prior to today's ruling, the Court permitted universities to use race as a factor in admissions, based on their interest in promoting "diversity." Not so in the employment context. The Court never has blessed employers taking race-conscious employment actions based on interests in workforce diversity.

Today's Supreme Court decision rejects diversity interests as justifications for race-based university admissions decisions. This brings the rules governing higher education into closer parallel with the more restrictive standards of federal employment law. Employers generally are not permitted to take employment actions motivated by protected characteristics.

Again, allow me the pleasure to emphasize:

The Court never has blessed employers taking race-conscious employment actions based on interests in workforce diversity. Employers generally are not permitted to take employment actions motivated by protected characteristics.

Some Text from 1964 Civil Rights Legislation

Title VI: Education

Text in “block quotes'“ (the stuff with that brown line on the left). Other stuff is my commentary.

No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to, discrimination under any program or activity receiving Federal financial assistance.

This means all colleges and universities receiving federal grants or federally-assisted student aid. Which is nearly all colleges and universities that you have heard of.

Title VII: Employment

It shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin

Rare Exceptions

The Supreme Court permits discrimination in very rare exceptions, typically involving a compelling individual or state interest. As Lucas described in her article:

Since the 1970s, the Supreme Court has authorized employers to consider race (and sex) only in very limited circumstances as part of voluntary, remedial affirmative action plans. These remedial plans must be temporary, narrowly tailored to the company or industry at issue, and justified by a "strong basis in evidence" that remedial action is necessary.

In normal language, if a company really had an ugly history of discrimination, and wishes to rectify it, they can implement preferential selection as remediation.

SCOTUS Bakke and Gruttinger decisions also permitted “compelling state interests” to override Civil Rights law prohibiting racial/ethnic/national origin discrimination. These cases permitted institutions of higher education to use race as one criteria among many to enhance the diversity of their student bodies. The grounds? Doing so constituted an appropriate exercise of institutional academic freedom in the service of enhancing the quality of education.

This rationale was rejected in the recent SCOTUS case involving Harvard and University of North Carolina, and I will return to that later.

Things That are Not Exceptions

Lucas again:

A general interest in diversity or "equity" is not sufficient to allow race- or sex-motivated employment actions. Nor are references to societal discrimination, or differences between the composition of a company's workforce and "society," or the company's customer base.

I am tempted to repeat the whole passage but please, just slow down and read it again.

Programs to create “equity” by discrimination are, according to this EEOC commissioner, illegal. Of course, any normal English reading of Title VI and Title VII will produce the same conclusion.

SCOTUS in the Bakke Decison

The amazing thing about the Bakke decision is that, even though it permitted use of race in admissions for the purpose of diversity, it actually ruled as illegal almost every progressive rationale for diversity.

From Bakke:

If petitioner's purpose is to assure within its student body some specified percentage of a particular group merely because of its race or ethnic origin, such a preferential purpose must be rejected not as insubstantial, but as facially invalid. Preferring members of any one group for no reason other than race or ethnic origin is discrimination for its own sake. This the Constitution forbids.

You can’t admit more people from Group X just because you want more people from that group.

Bakke decision continues:

We have never approved a classification that aids persons perceived as members of relatively victimized groups at the expense of other innocent individuals in the absence of judicial, legislative, or administrative findings of constitutional or statutory violations.

In normal English, you can’t punish an innocent person to ameliorate some other person’s victimhood. Punishing a person for a transgression they did not commit is arguably one of the worst forms of injustice.

Bakke decision continues:

Hence, the purpose of helping certain groups whom the faculty of the Davis Medical School perceived as victims of "societal discrimination" does not justify a classification that imposes disadvantages upon persons like respondent, who bear no responsibility for whatever harm the beneficiaries of the special admissions program are thought to have suffered.

This text legally guts Ibram Kendi’s attempt to justify racial preferences in the name of anti-racism; it also morally guts it. However justified the goal of preventing “societal discrimination” (and I think it is justified indeed) and the goal of helping groups victimized by discrimination (another goal I support), the one way not to do this is by penalizing the innocent. Of course, “innocent” here is used in its normal English manner. It means “this person committed no transgression.” This won’t likely be persuasive to those on the far left who believe the whole system is racist and anyone who does well within that system is guilty. Thus you get concepts like “White privilege” — and given that “privilege” refers to “unearned advantages,” you end up with an ideology that gins up resentment of the successful, and justification for “dismantling” and “disrupting” them, and, even, “stripping them of their belongings.”

Regardless, it is illegal to discriminate against any racial or ethnic group:

• To achieve “equity.” (Whether the equity component of Diversity, Equity, and Inclusion programs can survive this remains to be seen)

• To compensate for past injustices done to some other group

• To compensate for some group being subject to more current discrimination, in general, than are other groups.

Lucas on What Nondiscrimination Should Look Like

The EEOC and DOJ's existing position is that Title VII bars discrimination in all actions affecting "terms, conditions, or privileges of employment" — including actions falling short of hiring, firing, or promotion. This expansive reading of Title VII could implicate a host of increasingly popular race-conscious corporate initiatives: to diverse candidate slate policies; to tying executive or employee compensation to the company achieving certain demographic targets; to offering race-restricted diversity internship programs or accelerated interview processes, sometimes paired with euphemistic diversity "scholarships" that effectively provide more compensation for "diverse" summer interns.

Between today's wake-up call on affirmative action restrictions, and what may be coming down the pike from the Court next term on the scope of adverse actions covered by Title VII, there's never been a better time for companies to take a hard look at their diversity programs.

The Harvard/UNC SCOTUS Case

SCOTUS only rarely overrules its prior precedents. So why did they overrule the precedents SCOTUS had set in Bakke and Grutter permitting some use of race in admissions decisions? Some quotes from the Harvard/UNC case:

Proposed by Congress and ratified by the States in the wake of the Civil War, the Fourteenth Amendment provides that no State shall“deny to any person . . . the equal protection of the laws.” Proponents of the Equal Protection Clause described its “foundation[al] principle” as “not permit[ing] any distinctions of law based on race or color.” Any“law which operates upon one man,” they maintained, should “operate equally upon all.” Accordingly, as this Court’s early decisions interpreting the Equal Protection Clause explained, the Fourteenth Amendment guaranteed “that the law in the States shall be the same for the black as for the white; that all persons, whether colored or white, shall stand equal before the laws of the States.”

The culmination of this approach came finally in Brown v. Board of Education, 347 U. S. 483. There, the Court overturned the separate but equal regime established in Plessy and began on the path of invalidating all de jure racial discrimination by the States and Federal Government. The conclusion reached by the Brown Court was unmistakably clear: the right to a public education “must be made available to all on equal terms.” 347 U. S., at 493. The Court reiterated that rule just one year later, holding that “full compliance” with Brown required schools to admit students “on a racially nondiscriminatory basis.” Brown v. Board of Education, 349 U. S. 294, 300–301.

Eliminating racial discrimination means eliminating all of it. Accordingly, the Court has held that the Equal Protection Clause applies “without regard to any differences of race, of color, or of nationality”—it is “universal in [its] application.” Yick Wo v. Hopkins, 118 U. S. 356,

369. For “[t]he guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color

As a connossieur of fine displays of calling bullshit, I consider the decision a thing of beauty. Back to SCOTUS (bold for emphasis is by me):

Twenty years have passed since Grutter, with no end to race-based college admissions in sight. But the Court has permitted race-based college admissions only within the confines of narrow restrictions: such admissions programs must comply with strict scrutiny, may never use race as a stereotype or negative, and must—at somepoint—end. Respondents’ admissions systems fail each of these criteria and must therefore be invalidated under the Equal Protection Clause of the Fourteenth Amendment. Pp. 21–34.

“No end in sight” refers to the fact that Grutter required an end and expected that end to be about 25 years after that ruling.

Respondents fail to operate their race-based admissions programs in a manner that is “sufficiently measurable to permit judicial [review]” under the rubric of strict scrutiny. Fisher v. University of Tex. at Austin, 579 U. S. 365, 381. First, the interests that respondents view as compelling cannot be subjected to meaningful judicial review. Those interests include training future leaders, acquiring new knowledge based on diverse outlooks, promoting a robust marketplace of ideas, and preparing engaged and productive citizens. While these are commendable goals, they are not sufficiently coherent for purposes of strict scrutiny. It is unclear how courts are supposed to measure any of these goals, or if they could, to know when they have been reached so that racial preferences can end.

Second, respondents’ admissions programs fail to articulate a meaningful connection between the means they employ and the goals they pursue. To achieve the educational benefits of diversity, respondents measure the racial composition of their classes using racial categories that are plainly overbroad (expressing, for example, no concern whether South Asian or East Asian students are adequately represented as “Asian”); arbitrary or undefined (the use of the category “Hispanic”); or underinclusive (no category at all for Middle Eastern students). The unclear connection between the goals that respondents seek and the means they employ preclude courts from meaningfully scrutinizing respondents’ admissions programs.

The universities’ main response to these criticisms is “trust us.”

I can’t resist. Trust us?

SCOTUS continues:

Respondents’ race-based admissions systems also fail to comply with the Equal Protection Clause’s twin commands that race may never be used as a “negative” and that it may not operate as a stereotype. The First Circuit found that Harvard’s consideration of race has resulted in fewer admissions of Asian-American students. Respondents’ assertion that race is never a negative factor in their admissions programs cannot withstand scrutiny. College admissions are zero-sum, and a benefit provided to some applicants but not to others necessarily advantages the former at the expense of the latter.

Respondents admissions programs are infirm for a second reason as well: They require stereotyping¹—the very thing Grutter foreswore. When a university admits students “on the basis of race, it engages in the offensive and demeaning assumption that [students] of a particular race, because of their race, think alike.”

And then their killer conclusions:

Because Harvard’s and UNC’s admissions programs lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points, those admissions programs cannot be reconciled with the guarantees of the Equal Protection Clause.

Many universities have for too long wrongly concluded that the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned, but the color of their skin. This Nation’s constitutional history does not tolerate that choice.

Battle of Gettysburg. By Philippoteaux, via Wikimedia.

Diversity in the Grutter Decision

I find one last thing unbelievably ironic. From Grutter, the justification for permitting racial preferences were that it is one aspect of many types of diversity. Had diversity actually been implemented in this way, it would likely improve the intellectual life on campuses. The irony, however, is that the way it was implemented narrowed rather than broadened intellectual life on many, perhaps most, campuses. From Grutter:

The Law School does not, however, limit in any way the broad range of qualities and experiences that may be considered valuable contributions to student body diversity. To the contrary, the 1992 policy makes clear “[t]here are many possible bases for diversity admissions,” and provides examples of admittees who have lived or traveled widely abroad, are fluent in several languages, have overcome personal adversity and family hardship, have exceptional records of extensive community service, and have had successful careers in other fields. The Law School seriously considers each “applicant’s promise of making a notable contribution to the class by way of a particular strength, attainment, or characteristic—e. g., an unusual intellectual achievement, employment experience, nonacademic performance, or personal background.” All applicants have the opportunity to highlight their own potential diversity contributions through the submission of a personal statement, letters of recommendation, and an essay describing the ways in which the applicant will contribute to the life and diversity of the Law School.

Has any of these ever happened? Probably somewhere. But Nate Honeycutt has a paper under review finding that “diversity” in academia does not mean any of these things. Unless you mention the specific groups progressives routinely refer to as “marginalized,” “minoritized” or “underrepresented,” your diversity statement is going to get you nowhere. (I hope to have an essay on this when it comes out).

In Bakke and Grutter, SCOTUS permitted race as a consideration because diversity was both an appropriate exercise of institutional academic freedom and that it was in the service of enhancing the quality of education. But the irony is that, as actually instituted, diversity in academia was a screening device to facilitate its radicalization (see here and here) — i.e., becoming narrower and narrower politically without diversifying the perspectives or experiences of either its students or faculty in any way ever measured (almost as if almost no one in academia, and almost certainly no administrators of major universities, ever cared to measure diversity of perspectives and experiences because “diversity” was never about what SCOTUS praised in Grutter. Evidence has been accumulating that, rather than enhancing academic freedom (which diversity in the sense envisioned by Grutter would have actually accomplished), diversity as actually implemented has been undermining it.

Nondiscrimination and freedom are cornerstones of a liberal democracy. It should not be surprising that academia, once it abandoned the first, also began abandoning the latter.

Woodstock, NY. This is actually a work of art and not an historical marker. As far as I know, there probably were lots of Robert Hass’s, but I have no idea whether one actually stood there. Eeven if a particular Robert Hass did, I have no idea whether he was particularly patriotic. But I do like the spirit.

1. Stereotyping. I know, I write about stereotype accuracy all the time. But different people mean different things by stereotypes. I use the term to mean a simple, neutral, open-ended “beliefs about groups.” SCOTUS clearly uses it here to refer to presuming that all members of a group are the same. Given their meaning, I am fine with this text. Yes, Virginia, it is bad and almost always wrong, both factually and morally, to assume all of “them” (fill in your “them” of choice) think or act the same.