Civil Rights in the United States
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 Second Annual Executive Branch Review Conference
Under disparate impact analysis, certain practices might be considered discriminatory if they have a disproportionate adverse impact on a protected class of persons, even without discriminatory intent. A number of commentators have noted an expansion of the use of disparate impact analysis in the federal government to areas other than employment, now including education, housing, government contracting, and auto financing, to name a few. Our panel of experts will discuss whether or not there has been such an increase, and, if so, what the ramifications might be.
A key element of the Practice Groups' Executive Branch Review project is our annual conference. This year's Executive Branch Review Conference took place on May 7th at the Mayflower Hotel in Washington, D.C.
Disparate Impact Analysis
11:00 a.m. – 12:15 p.m.
- Hon. Gail Heriot, Professor of Law, University of San Diego School of Law and Commissioner, U.S. Commission on Civil Rights
- Hon. Peter N. Kirsanow, Benesch, Friedlander, Coplan & Aronoff LLP and Commissioner, U.S. Commission on Civil Rights and former Member, National Labor Relations Board
- Prof. Theodore M. Shaw, Professor of Professional Practice in Law, Columbia University School of Law
- Moderator: Mr. Adam Liptak, Supreme Court Correspondent, The New York Times
Mayflower Hotel 2013 National Lawyers Convention
A number of commentators have noted an expansion of the use of disparate impact analysis in the federal government to areas other than employment. Examples of increased application are often cited in education, government contracting, and auto financing, to name a few. Our panel of experts will discuss whether or not there has been such an increase, and, if so, what the ramifications may be.
The Civil Rights Practice Group hosted this panel on "Use of Disparate Impact Analysis" on Friday, November 15, during the 2013 National Lawyers Convention.
Civil Rights: Use of Disparate Impact Analysis
12:00 noon – 2:00 p.m.
- Prof. Reva Siegel, Nicholas deB. Katzenbach Professor of Law, Yale Law School
- Prof. William R. Yeomans, Fellow in Law and Government, American University Washington College of Law
- Mr. Roger Clegg, President and General Counsel, Center for Equal Opportunity
- Hon. Kenneth L. Marcus, President, the Louis D. Brandeis Center for Human Rights
- Moderator: Hon. William F. Kuntz, II, United States District Court, Eastern District of New York
[Watch or listen now!] SCOTUScast 10-28-13 featuring Robert Driscoll
Robert Driscoll October 28, 2013
On October 15, 2013, the Supreme Court heard oral argument in Schuette v. Coalition to Defend Affirmative Action. The question in this case is whether a state violates the Fourteenth Amendment's Equal Protection Clause by amending its own state constitution to prohibit race- and sex-based discrimination or preferential treatment in public-university admissions decisions. SCOTUScast 10-15-13 featuring Rachel Mondl
To discuss the case, we have Robert Driscoll, who is a partner at Friedlander Misler.
Rachel Mondl October 15, 2013
On October 7, 2013, the Supreme Court heard oral argument in Madigan v. Levin. The question in this case is whether state and local government employees may avoid the requirements of the federal Age Discrimination in Employment Act by bringing age discrimination claims directly under the 14th Amendment's Equal Protection Clause and Title 42 U.S. Code Section 1983.
To discuss the case, we have Rachel Mondl, an associate in the Washington, D.C. office of Gibson, Dunn & Crutcher.