The Supreme Court decision striking down affirmative action in admissions was just the beginning, lawyers involved in the fight tell NR.
It was touted as a plan to benefit San Francisco’s Covid-19-hobbled arts community by providing local artists with much-needed financial stability.
Launched in connection with a local arts nonprofit, the San Francisco Guaranteed Income Plan for Artists promised $1,000 per month, no strings attached, to selected artists in the city.
The organizers were clear about their intentions: The money was to be targeted to artists from underserved communities, and it was to be used to tackle systemic inequity in the arts.
To get around legal hurdles set up to prevent racial discrimination in the allocation of public funds, the organizers behind the program admitted that they used “imperfect proxy indicators” to make sure the money went to people with the preferred skin color, ethnic background, or sexual orientation.
The program is one of at least four race or identity-based guaranteed-income programs in San Francisco, according to a lawsuit filed in May by the American Civil Rights Project, a small conservative legal firm, which argues that the programs are unconstitutional.
The American Civil Rights Project specializes in fighting identity-based discrimination.
“We exist to protect and restore the shared civil rights of all Americans against the challenge of those who would replace equal protection with what they like to call equity,” Dan Morenoff, the head of the organization, told National Review. “It isn’t equity. That is a word with a 1,000-year history in the English language, and it doesn’t mean what they say.”
The San Francisco case is just one of a slew of lawsuits from right-leaning legal firms challenging the use of racial preferences in broad segments of American life. The lawsuits come on the heels of last summer’s landmark Supreme Court ruling in the Students for Fair Admissions cases, which held that it is unconstitutional for colleges and universities to consider a prospective student’s race in their admissions processes.
These legal challenges, targeting both governmental entities and private firms, could help to establish the next key fronts in the fight against race-based and identity-based preferences in everything from admissions to elite public high schools to hiring and promoting workers to awarding grants, contracts, and public benefits.
The fight is being led by a patchwork of conservative and libertarian-leaning civil-rights activists, elected leaders, and legal firms pushing back on the leftist proponents of diversity, equity, and inclusion, who seek to use identity-based discrimination to correct past discrimination against historically marginalized groups, and to redistribute power. DEI proponents allege that the one-time American ideal of colorblindness is itself racist, and that challenges to their “anti-racist” orthodoxy are nothing more than veiled attempts to uphold systemic white supremacy.
Morenoff counters that the legal challenges to race-based preferences are key to upholding the ideal of equal protection, regardless of skin color, “that is a foundational element of what America is and what it has always aspired to be.”
California, where racial and identity-based discrimination is flourishing in guaranteed-income programs, housing rules, and prospective reparations plans, will be a key battleground, Morenoff said. Some of the other key legal legal fights to watch include:
- An effort by the Pacific Legal Foundation to get the Supreme Court to overturn a lower-court ruling upholding admissions changes aimed at reducing the population of Asian Americans at Virginia’s elite Thomas Jefferson High School for Science and Technology;
- A Louisiana lawsuit challenging Environmental Protection Agency efforts to base permitting decisions not on the law but on their alleged impact on select racial groups;
- And a Florida challenge to a federal law requiring the state’s colleges and universities to stick with a Department-of-Education-approved accrediting agency that state officials allege imposes political views on the schools, including around diversity requirements.
Gail Heriot, a University of San Diego School of Law professor and member of the U.S. Commission on Civil Rights, said she believes that reestablishing the ideal of equality under the law without affirmative action and other illegal racial preferences will be a generational fight.
In the mid 1990s, Heriot was a leader in the successful campaign to amend the California constitution to bar the consideration of race, sex, or ethnicity in public employment, public contracting, or public education. She is now chair of the American Civil Rights Project’s board.
While the outcome of the Students for Fair Admissions cases was not necessarily surprising, she is more optimistic now about the future of the movement, she said.
“We had to win that case,” Heriot said. “We won it well. They were not equivocal.”
Affirmative Action at Work
While the Supreme Court seems to have settled the question of affirmative action in higher-education admissions, it remains unclear whether the Students for Fair Admissions ruling will affect race-based hiring practices in the workplace.
In the wake of the racial-justice protests stemming from George Floyd’s death, major corporations have openly promoted DEI programs benefiting women and racial minorities. Among them: Pfizer offered a “Breakthrough Fellowship” program specifically for black, Hispanic, and Native-American college students; Best Buy had a professional-development program open to pretty much any racial group but whites; and Amazon launched a program offering $10,000 grants to “Black, Latinx, and Native American entrepreneurs” looking to build delivery businesses.
Groups like the American Civil Rights Project, America First Legal, and the American Alliance for Equal Rights have pushed back against this trend of workplace affirmative action, challenging race and identity-based discrimination by some of the country’s biggest corporations, including Dick’s Sporting Goods, Target, McDonald’s, and Starbucks.
The Pacific Legal Foundation, on the other hand, focuses its efforts on governmental discrimination. In May, Pacific Legal filed a lawsuit against the state of Massachusetts over a grant program for small-business owners that disqualified white men. It September, it sued the city of Houston over its race-based contracting rules, and it sued the city of Asheville, N.C., which has rejected candidates for its Human Relations Commission based on their race.
Legal challenges to such programs are typically based on claims that they violate the 14th Amendment’s Equal Protection Clause, which provides for “equal protection of the law” for all citizens, as well Title VI and Title VII of the Civil Rights Act of 1964.
Title VI prohibits discrimination on the basis of race, color, and national origin in programs and activities that receive federal financial assistance, while Title VII prohibits discrimination in employment and training.
Erin Wilcox, a Pacific Legal Foundation lawyer, said the only legal reason for a government to discriminate by race “is to remedy past discrimination that government had in place.”
Government, she said, “can’t treat people differently based on skin color because society treats people differently based on skin color. It’s got to be something the government actually did.”
Equality Means Equality
The U.S. has a long history of failing to live up to its ideal of providing equal protection for racial minorities and women. “There are long periods of failure,” Morenoff said.
But while the Civil Rights Act seemed to promise to finally put an end to legalized discrimination, it didn’t take long for the pendulum to swing in the other direction and for the courts to open the door to discrimination in favor of minorities and women.
In 1979, in United Steelworkers of America v. Weber, the Supreme Court upheld an affirmative-action program at a Louisiana chemical plant, finding that Title VII of the Civil Rights Act’s bar on employment discrimination didn’t actually mean what it says.
That ruling ultimately gave birth to the wave of race-based programs and hiring practices that peaked amid the nationwide social-justice push of 2020.
“Employers can’t seem to get this right,” Heriot said. “They are interpreting the Weber case to mean ‘We can do whatever we want as long as it is in favor of women and under-represented minorities.’ But the Weber case was the product of a particular era. Even if the present Supreme Court were to view Weber as good law — and I doubt it would — the same factual situation is unlikely to come up today.”
The Weber ruling came a year after a mixed ruling in Regents of the University of California v. Bakke, when the Supreme Court shot down a university policy of setting aside a select number of medical-school seats for “qualified” minorities. But the court upheld the use of a narrowly tailored affirmative action for “the attainment of a diverse student body.”
In 2003, in Grutter v. Bollinger, an opinion authored by Justice Sandra Day O’Connor, she wrote that the University of Michigan Law School’s policy of lowering the academic bar to bring in a “critical mass” of minority students counted as a “narrowly tailored use of race in admissions.”
“The Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today,” O’Connor wrote.
After Bakke and Grutter, universities justified racially discriminatory admissions policies with language about the supposed educational benefits of a diverse student body.
But “really, no one ever believed that,” Morenoff said.
Many university leaders thought affirmative action was right thing to do, Morenoff said, and “if they had to talk about diversity to do it, they would go ahead and do so because one justice in a footnote suggested that might be your legal fig leaf.”
And while Bakke and Grutter were technically just about university admissions, “they were read much more broadly than that,” Morenoff said.
Likewise, the Students for Fair Admissions decision, which effectively overruled Grutter, technically applies just to higher-education admissions. But Wilcox said it could strengthen legal cases challenging race or identity-based discrimination in other areas as well.
“For the Supreme Court to come in and kind of say, ‘This is off the table, equality means equality. If you’re going to get rid of discrimination, you have to eliminate all of it,’ I think that was a pretty clear message and that was a game-changer for a lot of different areas,” Wilcox said. “And I think lower courts are going to pay attention to that.”
Edward Blum, the activist who founded the Students for Fair Admissions group, and who has been fighting affirmative-action programs for over a decade, agreed. “Since the Supreme Court ruled that the use of racial classifications and preferences in higher education violates the Constitution,” he said in an email, “it must follow that employment, contracting, and other areas of our public policies must not use race as a factor as well.”
All Eyes on Thomas Jefferson High School
Morenoff pointed at the Thomas Jefferson High case as a key next front in the civil-rights battle, and an opportunity for the Supreme Court to back up its Students for Fair Admissions ruling.
In the wake of 2020’s racial-justice protests, Fairfax County school leaders adjusted their admissions standards to the elite school, which had few black and Hispanic students but was heavily populated with Asian Americans. To bring more racial balance to the school, they implemented a variety of allegedly race-neutral changes, including eliminating the entrance exam, which the Asian students performed well on, and instructing admissions officers to offer admission to the top students from every school and to consider “experience factors,” including if the student attended a “historically underrepresented” middle school.
Asian-American parents argued that the changes were targeted at their kids, and, according to a lawsuit, were “intentionally designed to achieve the same results as overt racial discrimination.” A divided Fourth Circuit Court of Appeals ruled in the school’s favor.
In the wake of the Students for Fair Admissions ruling, College and university admissions officials are keeping an eye on the admissions practices at elite public high schools like Thomas Jefferson, and on the Fourth Circuit’s opinion.
“The colleges are going to look at what is permissible or not permissible on the high-school level, which we know is racial favoritism,” said Wai Wah Chin, an adjunct fellow at the Manhattan Institute and founder of the Chinese American Citizens Alliance of Greater New York, which advocates for equal rights in schools.
“Affirmative action became extremely, extremely addictive,” Chin said. She said she hopes the Students for Fair Admissions ruling and other legal challenges “will push back on it, and say, ‘You know, we have to stop judging people by melanin and stop taking the easy fix.’”
Morenoff said Florida’s lawsuit against the Biden administration, challenging a federal law that mandates the body that accredits its colleges and universities, is important because accreditors these days are focused on far more than just education.
Florida officials allege that the Southern Association of Colleges and Schools Commission on Colleges, or SACS, which accredits schools in Florida and eleven other states, imposes its political views on schools. For example, SACS has boasted of its plan to prevent UNC from establishing a program based on ideological diversity, according to the Wall Street Journal.
“Really, they’re a cartel, they’re a series of cartels run by the institutions to prevent anyone from doing things differently,” Morenoff said. “They are given the power by the Department of Education to decide whether an institution is eligible for federal funding, which means any grants any loans, any student loans.”
Challenging the Disparate Impact Theory
Morenoff also pointed to Louisiana’s lawsuit against the EPA as a key case targeting government overreach.
The case involves a Civil Rights Act probe the EPA launched last year against Louisiana’s health and environmental-quality departments involving pollution from a synthetic rubber plant that the agency suggested had a disparate impact on the health of black residents.
In their lawsuit, Louisiana leaders said the probe showed that EPA officials were moonlighting as “social justice warriors fixated on race.”
The EPA didn’t allege any intentional discrimination against black residents, the lawsuit states.
“Instead, EPA is relying on a ‘disparate impact’ theory to expand its authority far past enforcement of actual environmental standards into imposing its amorphous vision of ‘justice’ upon the American public,” according to the lawsuit.
The EPA has since dropped its probe, but Louisiana is continuing with its lawsuit.
The EPA launched its investigation after receiving complaints from activists who alleged racial discrimination in violation of Title VI. But Morenoff said they’ve got it backward.
He argues that the EPA’s probe attempted to use the disparate-impact concept to compel the state to violate Title VI. “It is saying that in order to avoid a statistic that might imply discrimination, you must treat people differently based on race to produce balanced statistics,” Morenoff said, “which is exactly what Title VI prohibits.”
Assembling ‘An Army of Attorneys’
Morenoff said that because of the Supreme Court’s Students for Fair Admissions ruling, civil-rights activists and lawyers like him fighting for equal protection are in “a dramatically better place than we were a year ago.”
He’s optimistic that the country will eventually come to a general agreement against race and identity-based preferences, pointing to decades of polls showing Americans overwhelmingly oppose racial discrimination in college admissions.
“The public is on our side, the law is on our side, the courts are on our side,” he said. “Yes, we are going to get there. It is going to take time.”
Wilcox with Pacific Legal is also optimistic. “I do believe that the conversation is going to change,” she said. “It might not change tomorrow, but I think it’s going to change in my generation.”
While many lawfirms and groups are part of the fight for equal protection, they often have different ideas about, which cases to choose and which battles to fight.
“We’re not always as coordinated or as strategic as I wish we could be,” Heriot said. “Part of the problem is, there are so many targets in the woke world now, it’s like whack-a-mole. There are talented lawyers who are trying to go after these discriminatory programs, but we are short-handed.”
“We need armies of attorneys, and we don’t have them,” she said. “Not yet.”