Tag Archives: court

Proving Discrimination Is Almost Impossible

Teresa Wagner’s lawsuit
against the University of Iowa law school ended a few weeks ago when a jury
declared that the school did not submit her to political discrimination when it
rejected her application for a job. Wagner made a second allegation–that her
equal protection rights were violated because the law school held her political
activism against her–which was not ruled upon, the judge declaring a mistrial
because the jury couldn’t reach a decision, leaving open the possibility of
future action by Wagner’s attorney. Indeed, the Chronicle reports
that Wagner has filed papers asking for a retrial on all counts.
 

The first verdict wasn’t unexpected.  Wagner had to
prove that faculty members voted against her for her political views, which run
well to the Right.  But of course, nobody on hiring committees ever
says outright, “She’s a conservative–she’s out!”  They know
better–Schmidt cites one witness who “testified that no faculty member
would ‘be stupid enough’ to cite politics as the reason for turning down an applicant”–and
besides, they don’t have to.  In the hiring process there are so many
stages and variables that it’s easy to drop a conservative candidate for a
dozen other more or less non-political reasons.  “She isn’t a good
fit,” one might say, or “We already have strengths in her area, we need someone
in another field,” another could argue, or “I don’t think she handled questions
very well in the interview” could be the line.  The outcome is
assured and nobody needs to raise delicate matters along the way.

In Wagner’s case, a clear
distinction came up in her qualifications relative the person who got the job: She was one of five candidates chosen from a pool of 50 applicants invited to
present to the university’s faculty.

But that enthusiasm died soon after her presentation. The job
was given to Matt Williamson, a candidate who had never practiced law, had no
published works and was an ardent liberal who frequently criticized
Republicans, according to testimony and court documents presented last week to
the jury.

That a candidate who never practiced law and had no publications
should prevail over Wagner sounds fishy.  The Chronicle story
relates, too, that the person hired resigned a year later for “poor
performance.”  One could also mention the disparate-outcome argument
so beloved by liberals: the law school has one registered Republican and 46
registered Democrats.  Finally, one should note the email
law professor and former associate dean Jon Carlson sent to the law school dean
after the first rejection in which he worried that the faculty would balk at
the hiring of Wagner due to
“her politics (and especially her activism
about it).”
  

But the faculty had an answer: she botched the
presentation.  When asked about teaching “legal analysis,” an
important part of the job, they say, she declined.  Several witnesses
repeated that criticism, even though Wagner never recalls saying so (she showed
her pre-interview notes in court that displayed her intention to teach the
subject), and a couple of witnesses agreed with her, including Carlson and Mark
Osiel, another professor in the law school. The law school taped Wagner’s
presentation and could have offered the tape to settle the question. However,
the university erased the tape months after the hiring process had ended.

The coda to this story is equally frustrating. Just last week reporter
Jason Clayworth spoke
with four members of the jury who told him that jurors did believe that
political discrimination had taken place, but that they couldn’t hold one
person responsible.
This outcome shows how
far universities are able to fiddle with the hiring process with
impunity.  Here we have a jury convinced that political discrimination
took place, but they can’t convict because they have the wrong defendant. 
But the plaintiff couldn’t pick another defendant; indeed, federal law dictated
that the dean be made the “responsible party.” So people who feel they’ve been
treated unfairly face a Catch-22, and universities can carry on as usual.

The Sixth Circuit Undermines Affirmative Action

On November 6 the voters of Oklahoma, following in the footsteps of voters in California (1996), Washington (1998), Michigan (2006), Nebraska (2008), and Arizona (2010), passed  a constitutional amendment that prohibits the state from offering “preferred treatment” or engaging in discrimination based on race, color, gender, or ethnicity. On November 15 eight of the fifteen judges of the Sixth Circuit Court of Appeals held, over vigorous dissents, that the nearly identical Michigan amendment requiring the state to treat all its residents without regard to their race violated the Equal Protection Clause of the 14th Amendment. Really.

As Roger Clegg just noted, this decision will almost certainly be reviewed by the Supreme Court, not primarily because it is unusually stupid but because it conflicts with both old and recent decisions of even the notoriously liberal Ninth Circuit. Ironically, this decision is so bad that it may actually do some good before the Court can review it. In flatly rejecting the same argument made in the Michigan case (by the same lawyer) against California’s Prop. 209, a three judge panel of the Ninth Circuit ruled in April that “Grutter upheld as permissible certain race-based affirmative action programs. It did not hold that such programs are constitutionally required.” In holding that states are effectively prohibited from deciding that race-based preferences are impermissible, the Sixth Circuit’s overreaching Egregious Eight may have inadvertently driven a stake through the heart of affirmative action. Their extreme decision may persuade Justice Kennedy and hence a conservative majority to hold in the upcoming Fisher decision that Grutter must be gutted, not tweaked, that the only “way to stop discrimination on the basis of race,” as Chief Justice Roberts famously said in Parents Involved, “is to stop discriminating on the basis of race.”

Noting the great gulf separating the views on racial preference held by the nation’s opinion leaders and elites, including leaders and faculty of both public and private universities, Richard Kahlenberg recently quoted Richard Sander’s and Stuart Taylor Jr.’s observation in their terrific new book, Mismatch, “We can think of no other public issue in which the leadership class displays such cohesion in the face of a largely opposite view among Americans in general.”

In large part that’s because most Americans continue to define discrimination as distributing benefits or burdens based on race while opinion leaders in editorial and university offices, Hollywood and Madison Avenue, board rooms, and nearly all elected and appointed Democrats have abandoned that traditional definition and instead regard discrimination as anything that interferes with promoting “diversity,” which in practice means discriminating against white and Asians in order to admit or hire more blacks and Hispanics. Thus the Sixth Circuit thought it unfair that the citizens of Michigan prohibited “race-conscious” admissions, i.e., preferential treatment based on race, while allowing “a legacy-conscious admissions policy.” Whatever the merits or wisdom of legacy preference, it cannot be said that its intent or effect is to discriminate against minorities. Indeed, for over a generation now minorities have been admitted to selective institutions in greater numbers than if they had been held to the same standards as whites and Asians, and thus it is quite likely that legacy preferences on balance now actually benefit minorities.

Their “legacy conscious admissions” comparison reveals that the Sixth Circuit based its decision on the assumption that “race-conscious” admissions have the intent and effect of benefitting minorities. The massive amount of evidence presented in the “mismatch” scholarship of Sander, Taylor, and now many others, however, has demonstrated that in fact “race conscious” admissions actually does serious and lasting damage to its ostensible “beneficiaries.”

I say “ostensible” and put “beneficiaries” in quotes because for anyone who credits the mantra-like justifications for “race conscious” admissions offered by its proponents, it’s clear that lowering the bar for blacks and Hispanics is not intended as a benefit to them — after all, they would receive whatever benefits “diversity” offers at less selective institutions — but to the whites and Asians whose education is said to require being exposed to them.

In any event, the noxious belief of the Sixth Circuit and all supporters of racial preference that discrimination against some groups should be legal if it benefits other groups reveals how thoroughly American liberalism has abandoned the civil rights ideal that was its heart and soul from the1830s through the 1960s.

An Unusually Stupid Court Ruling

Yesterday the full U.S. Court of Appeals for the Sixth Circuit held that Michigan’s Proposal 2 violates the U.S. Constitution’s Equal Protection Clause. 

Proposal 2 was a ballot initiative that amended the state constitution to provide that state and local government agencies (including public universities) in Michigan “shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.”  The Equal Protection Clause provides that “No State shall … deny to any person within its jurisdiction the equal protection of the laws.”

The mind boggles.  Proposal 2 not only does not violate the Equal Protection Clause, and is not only quite consistent with it, but is indeed nothing more than an elaboration on it.

But here is the court of appeals’ reasoning:

A student seeking to have her family’s alumni connections considered in her application to one of Michigan’s esteemed public universities could do one of four things to have the school adopt a legacy-conscious admissions policy: she could lobby the admissions committee, she could petition the leadership of the university, she could seek to influence the school’s governing board, or, as a measure of last resort, she could initiate a statewide campaign to alter the state’s constitution. The same cannot be said for a black student seeking the adoption of a constitutionally permissible race-conscious admissions policy. That student could do only one thing to effect change: she could attempt to amend the Michigan Constitution–a lengthy, expensive, and arduous process–to repeal the consequences of Proposal 2. The existence of such a comparative structural burden undermines the Equal Protection Clause’s guarantee that all citizens ought to have equal access to the tools of political change.

To which the answer is:  The same might be said of a member of the Ku Klux Klan who wanted the University of Michigan to adopt a whites-only policy of racial segregation.  Would this court have ruled that the Klansman’s equal-protection rights are violated by Proposal 2?

That seems unlikely.  The decision was driven by its politically correct result, which is why the decision was 8-7 along partisan lines:  Every vote in the majority was by a Democrat-appointed judge (except, technically, for one who was originally nominated by President Clinton late in his term and then, in a misguided gesture of conciliation, renominated by President Bush at the beginning of his), and every dissenter was appointed by a Republican president.  Elections do indeed have consequences.

One’s first reaction is anger and frustration. 

Consider:  The saga may be said to begin in 1978, when a majority of the Supreme Court in the Bakke case decided that Title VI of the 1964 Civil Rights Act does not prohibit racial discrimination in university admissions, even though it reads, “No person in the United States shall, on the ground of race, color, or national origin … be subjected to discrimination [by federally funded universities]….”  The fact that the national legislature had, by the clear terms of a statute it had passed, banned racial preferences in university admissions was just ignored.

So those opposing such discrimination would have to meet the standard the Court uses in constitutional cases, which allows the discrimination if it is “narrowly tailored” to a “compelling” interest.  As the discrimination became more and more widespread and entrenched, hard-fought lawsuits were in fact brought in Texas and then Michigan and taken through the courts of appeals, and then finally in 2003 the Supreme Court agreed to revisit the issue.  Alas, the Court struck down some of the discrimination but also held by a 5-4 margin that the “educational benefits” from “diversity” provided such a compelling interest, at least for another 25 years (!). 

So it was back to the political process in Michigan, where thousands of petition signatures were gathered and then Proposal 2 was passed with 58 percent of the vote after a bruising campaign.  And now we are told that this was a waste of time because using the political process this way is unconstitutional.  Again, it’s frustrating.

All this, in the courts and at the ballot, and all because of this seemingly unexceptionable desire:  That universities not discriminate in admission on the basis of skin color or what country someone’s ancestors came from.

But, on reflection, we can make lemonade from this lemon.

The state attorney general has already announced that he plans to take the case to the Supreme Court – thank goodness – which will almost certainly grant review, because the decision below is not only important and outrageous, but also creates a split in the circuits since the Ninth Circuit rejected a similar lawsuit.  When the Court does so, there ought to be at least five votes to overturn the Sixth Circuit’s decision – and clarify or overturn a confusing and mischievous couple of earlier Supreme Court decisions that the Sixth Circuit used to justify its result.  So the case will provide the Court with an opportunity to replace bad precedent containing dubious language with good precedent and good language for future cases.

And wait, there’s more:  It has already been my hope that the recent election results, and in particular the demographic spin being put on them, should push the conservative justices to ban racial preferences, period, in the recently argued Fisher v. University of Texas.  It’s clear that the composition of the Court is not going to get any better and may get worse, and it’s clear that the political branches are not going to address this problem – and, indeed, the country is getting to the point where political power is wielded in a way to create a racial spoils system in university admissions, contracting, you name it.   Therefore, our justices will reason, we have to take this off the table now.

The fact that the Court knows that the Sixth Circuit case is now in the wings may make this course of action even more attractive in Fisher.  Yesterday’s decision underscores the need for a clear statement from the Court in this area, and it is, after all, even easier to explain why banning racial preferences is not unconstitutional when there is a Supreme Court decision that holds that using racial preferences is unconstitutional.

You have to hand it to our opponents (in this case the lawsuit was brought by an organization whose name promises to defend affirmative action By Any Means Necessary, or “BAMN”):  They never give up.  So we can’t either.  They have the advantage of being unprincipled, but we have the advantage of being right – of wanting to end racial and ethnic discrimination and preference, which is the only tenable legal regime for our increasingly multiethnic and multiracial nation.

_________________________________________________________________________

Roger Clegg is president and general counsel of the Center for Equal Opportunity, which joined amicus briefs filed by Pacific Legal Foundation in the Sixth Circuit case and in Fisher.

FIRE Singes the Censors

unlearningliberty.jpeg

How time flies. In 1987, a new breed of speech and harassment codes and student indoctrination were unleashed on college campuses across the land. Thus, what Allan Kors
and Harvey Silverglate famously labeled the “shadow university”–the university
dedicated to censorship and politically correct paternalism–is
now at least 25 years old.

The public recognized the consequences
of the new censorship early on. Noteworthy authors began writing articles and books
about the mounting suppression of free speech, academic freedom, and due
process on campus, culminating in the in-depth chronicling of the dark state of
higher education in The Shadow University
in 1998. 
By the end of the 1990s, however, many observers predicted that the repression would eventually run out of steam as the
passions driving political correctness waned with age. And in many respects,
political correctness often did appear to mellow out. More skeptical
observers claimed that it was not disappearing, but metastasizing. Who
was right?

Greg Lukianoff adresses this question in his outstanding new book, Unlearning Liberty: Campus Censorship and the End of American Debate (Encounter Books).  Lukianoff is the president of the Philadelphia based Foundation for Individual Rights in Education, popularly known by its telling acronym, FIRE. Unlearning Liberty is based on cases with which FIRE has dealt over the years.

Continue reading FIRE Singes the Censors

Iowa and the Groupthink Academy

That certain quarters of the academy–humanities
departments, most social sciences departments, and many graduate programs
(social work, education, and to a lesser extent law)–are ideologically
imbalanced is not news. A decision in an Iowa court, however, exposed the
difficulty in addressing the problem.

The case, which received extensive coverage in the Des Moines Register and attracted some
notice in the national press, involved Teresa Wagner, who in 2006 applied for a
vacancy at the University of Iowa Law School. (She then applied for adjunct jobs
between 2007 and 2009.) Wagner had served as a part-time instructor before that
time, was invited for an interview for the tenure-track job but didn’t receive
it, and then didn’t get any of the adjunct positions, either. (It’s odd indeed
for a candidate considered qualified enough to be a finalist for a tenure-track
job to, in turn, be deemed unqualified for an adjunct’s position.) Wagner
believed that her outspoken activism on social issues and her affiliation with
some very conservative groups, notably the Family Research Council, motivated
the opposition to her candidacy. Wagner then sued the dean of the law school.

Winning a lawsuit for an adverse hiring decision is all
but impossible. (The contrast here is to an adverse tenure decision, where the
odds are long but not insurmountable.) The university can always claim that,
whatever the apparent strengths of the plaintiff, there simply was another,
more qualified, candidate for the position, and that privacy/personnel rules
prevent a thorough airing of the matter. Given the inherently subjective nature
of the hiring process, that line of argument almost always carries the day, to
such an extent that few lawsuits alleging bias in the hiring process even make
it to trial.

The Wagner case, however, was unusual, in that she was
able to present an e-mail from the law school’s associate dean–dubbed a
“smoking gun” document by her attorney–in which the associate dean wrote, “Frankly,
one thing that worries me is that some people may be opposed to Teresa serving in
any role in part at least because they so despise her politics (and especially
her activism about it). I hate to think that is the case, and I don’t actually
think that, but I’m worried that I may be missing something.”

The law school dean unsurprisingly denied Wagner’s claim
of ideological bias, and instead rested on an assertion that Wagner had flubbed
an interview question by saying she’d refuse to teach a course required for the
position. But the law school’s position was weakened by its inability to
produce any contemporaneous references to this alleged flubbing (the notes from
other faculty seemed to praise, not disparage, Wagner’s performance). And a
videotape of Wagner’s interview that Wagner’s critics promised would prove their
case was conveniently erased.

Continue reading Iowa and the Groupthink Academy

Texas: Racial Preferences Now, Racial Preferences Forever!

The
University of Texas has filed its main brief
in Fisher v. University of Texas, and it’s a doozy. It argues, among
other oddities,

  • that
    the continuing “underrepresentation” of blacks and Hispanics requires the
    continued use of racial preferences to increase their numbers, but that the
    reason for increasing their numbers has nothing to do with increasing their
    numbers; it is necessary only because the “diversity” they provide is essential
    for the “acquisition of competencies required of future leaders”;
  • that
    assessing “the educational benefits flowing from student body diversity” might
    seem “amorphous,” but “trained educators” are competent to do so and courts
    should defer to their expertise;
  • that
    because Texas has no specific “race-based target” it should be allowed
    virtually unlimited latitude to give as much weight to race as it chooses;
  • that
    race-based preferences are necessary to combat racial stereotypes, presumably
    including the stereotype that minorities are incapable of succeeding without
    race-based preferences;
  • that
    not only is it too soon to limit or overturn Grutter; it will always be
    too soon because there are still “thousands of classes” where blacks and
    Hispanics are “nearly non-existent” and “diversity” is required not just
    institution-wide but in all classes.

I
discuss these and other aspects of the brief in more detail here.

Surprise! 9th Circuit Court of Appeals Affirms Obvious!

The Ninth Circuit Court of Appeals (I am tempted to say even the Ninth Circuit Court of Appeals) has once again recognized that treating people without regard to race does not violate the Fourteenth Amendment. In an opinion released April 2, a three-judge panel reaffirmed in no uncertain terms a 1997 Ninth Circuit decision holding that “[a]s a matter of ‘conventional’ equal protection analysis, there is simply no doubt that Proposition 209 is constitutional.” The Pacific Legal Foundation, which successfully argued the case, deserves the congratulations and gratitude of all those who believe in colorblind equal opportunity.

Continue reading Surprise! 9th Circuit Court of Appeals Affirms Obvious!

Keeton Defense Contradicts NAS Principles

As I noted
previously, a three-judge panel of 11th Circuit made a troubling decision in
the Jennifer Keeton case. But it did so not because it declined to reinstate
Keeton, a Counseling student who said that she would recommend “conversion
therapy” for prospective teenage clients who were gay and lesbian. As the
decision noted, Keeton demanded “preferential,
not equal, treatment,”
seeking to ignore the field’s ethical guidelines
of counselors putting their clients’ interests ahead of their own personal or religious
beliefs. The decision was troubling
because its findings could, and likely will, be used by colleges and
universities in the circuit to stifle legitimate student freedoms on campus.

Continue reading Keeton Defense Contradicts NAS Principles

From the Sixth Circuit: Good News, Bad News

There’s good news out of the U.S. Court of Appeals for the Sixth Circuit: On Friday, the full court agreed to rehear a now infamous decision in which a three-judge panel had earlier struck down the state of Michigan’s Proposal 2.  Proposal 2, in turn, is a ban on government discrimination and preference on the basis of race, ethnicity, and sex, passed by Michigan voters in 2006 in large measure because the U.S. Supreme Court in 2003 had upheld the state universities’ use of racial preferences in admissions.  The Sixth Circuit panel reasoned that this ban violates the Equal Protection Clause of the U.S. Constitution.

You can’t make this stuff up, folks.  That’s right: The people of Michigan, according to this court, violated the Equal Protection Clause when they demanded that their state treat all citizens equally–without regard to race, ethnicity, or sex–in government contracting, employment, and education, including university admissions.  Unbelievable.

Continue reading From the Sixth Circuit: Good News, Bad News

The 6th Circuit’s Astonishing Defense of Racial Preferences

A divided three-judge panel from the 6th Circuit has issued a remarkable decision striking down the Michigan Civil Rights Initiative, which prohibited state institutions from “discriminat[ing] against, or grant[ing] preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education or public contracting.” In 2006, Michigan voters had approved the measure, by a 16-point margin. Voters in other blue states, such as California and Washington, have endorsed similar measures.

Judges Guy Cole and Martha Daughtrey (both Clinton appointees) held that the MCRI violated the equal protection clause of the 14th amendment. They complain that the MCRI forced Michigan’s public universities “to modify the policies they had in place for nearly a half-century to remove consideration of ‘race, sex, color, ethnicity, or national origin’ in admissions decisions. No other admissions criteria–for example, grades, athletic ability, or family alumni connections–suffered the same fate.” (The last time I looked, the 14th amendment didn’t promise equal access to public university admissions regardless of an applicant’s grades.) The duo further contended that the use of a plebiscite “rigged the game to reproduce” the majority’s “success indefinitely.” According to Judges Cole and Daughtrey, then, a “rigged” version of “success” for the “majority” means creating an admission system in which colleges and universities cannot give special preferences to anyone on basis of the candidate’s race, ethnicity, or gender. A system that allows such preferences, on the other hand, reflects the equal protection tenets of the 14th amendment.

Continue reading The 6th Circuit’s Astonishing Defense of Racial Preferences

The Fifth Circuit Broadens Racial Preferences

The U.S. Court of Appeals for the Fifth Circuit not only upheld racial preferences in college admissions decisions on Jan. 18 but upheld them with a vengeance. The Fifth Circuit’s three-judge panel unanimously agreed, in Fisher vs. University of Texas at Austin, that UT’s flagship campus in Austin could consider an applicant’s race and ethnicity in awarding coveted slots in its incoming freshman classes. The judges declared that this policy was consistent with a 2003 Supreme Court decision, involving racial preference at the University of Michigan’s law school, holding that the goal of achieving “diversity” in classrooms justified admissions policies aimed at ensuring a “critical mass” on campus of historically under-represented minority groups.
Furthermore, the court deemed inadequate a 1997 law, race-neutral on its face but specifically aimed at boosting black and Hispanic enrollment at UT campuses by granting automatic admission to applicants in the top 10 percent of their high school classes—even though the Top Ten Percent Law had been highly successful, increasing the number of black incoming freshman at the UT-Austin campus by 50 percent and substantially increasing Hispanic enrollment.

Continue reading The Fifth Circuit Broadens Racial Preferences