Affirmative Action

College Admissions and Affirmative Action - Podcast

Civil Rights Practice Group Podcast
Edward Blum, William Consovoy January 09, 2015

The battle over the use of affirmative action in college admissions seems far from over, as the recent filing of two federal lawsuits demonstrates. The Project for Fair Representation recently sued both Harvard University and the University of North Carolina at Chapel Hill for allegedly capping the number of Asian-Americans they admit and using racial classifications to engage in invidious discrimination. Edward Blum and William Consovoy provided a litigation update on these and other cases.

  • Edward Blum, Director, The Project on Fair Representation
  • William Consovoy, Partner, Consovoy McCarthy PLLC

Challenging Racial Preferences in Government Contracts - Podcast

Civil Rights Practice Group Podcast
David F. Barton, Roger B. Clegg October 17, 2014

While the Supreme Court in City of Richmond v. J.A. Croson Co. (1989) and Adarand Constructors, Inc. v. Pena (1995) handed down landmark decisions against the use of racial preferences in government contracting, the practice continues. One of the largest such federal programs is run by the Small Business Administration, but Rothe Development Co. has now challenged it, in a case where the federal district court will hear oral argument later this month. The lawyer in that case -- who also represented Rothe in its successful challenge to a similar U.S. Department of Defense program -- is David Barton, and he discussed the case in this Teleforum. Also participating in the discussion was Roger Clegg, President and General Counsel of the Center for Equal Opportunity.

  • David F. Barton, Partner, The Gardner Law Firm
  • Roger Clegg, President and General Counsel, Center for Equal Opportunity

Race-based Admissions Revisited: Fisher v. University of Texas - Podcast

Civil Rights Practice Group Podcast
Andrew Grossman September 19, 2014

On July 25, 2014, the Fifth Circuit Court of Appeals issued its decision in Fisher v. University of Texas at Austin, on remand from the Supreme Court of the United States.  In a 2-1 decision, the panel upheld the University of Texas' affirmative action policies, "persuaded by UT-Austin ... of its necessary use of race in a holistic process and the want of workable alternatives that would not require even greater use of race."  Was this decision consistent with the Supreme Court's 7-1 decision in June 2013?  What will happen going forward?  Our expert answered these and other questions for a live call-in audience.

  • Andrew Grossman, Associate, Baker & Hostetler LLP and Adjunct Scholar, The Cato Institute

Place, Not Race: A New Vision of Opportunity in America - Podcast

Civil Rights Practice Group Podcast
Sheryll D. Cashin, Roger B. Clegg September 17, 2014

Race-based affirmative action had been declining as a factor in university admissions even before the recent spate of related cases arrived at the Supreme Court. Since the mid-1990s, the percentage of four-year public colleges that consider racial or ethnic status in admissions has fallen from 60 percent to 35 percent. Only 45 percent of private colleges still explicitly consider race, with elite schools more likely to do so, although they too have retreated. Law school professor and civil rights activist Sheryll Cashin believes that this isn’t entirely bad news, because, as she argues, affirmative action as currently practiced does little to help disadvantaged people. The truly disadvantaged are not getting the quality schooling they need in part because backlash and wedge politics undermine any possibility for common-sense public policies. Using place instead of race in diversity programming, she writes, will better amend the structural disadvantages endured by many children of color, while enhancing the possibility that we might one day move past the racial resentment that affirmative action engenders. In Place, Not Race: A New Vision of Opportunity in America, Professor Cashin reimagines affirmative action and champions place-based policies, arguing that college applicants who have thrived despite exposure to neighborhood or school poverty are deserving of special consideration.

Racial Preferences and Promoting Diversity: Are These Policies Taking Us in the Right Direction? - Event Audio/Video

Civil Rights in the United States
Hans Bader, Louis Michael Seidman, Stuart S. Taylor, Roger Pilon September 14, 2014

The Obama administration is widely perceived to be an avid proponent of racial preferences. As Attorney General Eric Holder said in 2012, “The question is not when does [affirmative action] end, but when does it begin.” Several landmark pieces of legislation that President Barack Obama has signed into law—primarily on other topics, such as the Dodd Frank Wall Street Consumer Protection and Reform Act and the Patient Protection and Affordable Care Act—have expanded racial preferences in federal hiring, contracting, and at regulated entities. The president has also issued multiple executive orders and related instructions that aggressively seek to expand the numbers of women and minorities in the federal workforce. The Obama administration’s response to Fisher v. University of Texas, 133 S. Ct. 2411 (2013), which directed courts to use strict scrutiny in analyzing whether admissions policies are narrowly tailored to achieve universities’ diversity goals, may be another such example. After Fisher, officials at the Departments of Education and Justice produced guidance documents that have been read to assure colleges and universities that they could continue using large racial preferences in student admissions. This panel will explore this proliferation of racial preferences and the likely effects of such policies. Among other things, panelists will discuss evidence that racial preferences in education do more harm than good to their intended beneficiaries, resulting in fewer under-represented minorities going on to high-status careers. The panel will also discuss efforts to protect women and minorities from ill-defined “harassment” as a means of maintaining diversity in the workplace and on campuses—and how these efforts may raise First Amendment concerns and create perverse incentives to discriminate against persons who are perceived as likely to view innocent or trivial workplace and campus interactions as harassment.

This panel on "Racial Preferences and Promoting Diversity: Are These Policies Taking Us in the Right Direction?" was part of a day-long conference on Civil Rights in the United States held on September 9, 2014, and co-sponsored by the Federalist Society's Civil Rights Practice Group, the Cato Institute, and the Heritage Foundation.


  • Mr. Hans Bader, Senior Counsel, Competitive Enterprise Institute
  • Prof. Louis Michael Seidman, Carmack Waterhouse Professor of Constitutional Law, Georgetown University Law Center
  • Mr. Stuart S. Taylor, Jr., Nonresident Senior Fellow in Governance Studies, The Brookings Institution
  • Moderator: Dr. Roger Pilon, Vice President for Legal Affairs, B. Kenneth Simon Chair in Constitutional Studies, and Director, Center for Constitutional Studies, Cato Institute

The Mayflower Hotel
Washington, DC