1. The UNC and Harvard Cases are Not “Affirmative Action” Cases
Rather, both the UNC and Harvard cases are discrimination law cases in which the trial courts (both of which ruled in favor of the universities) found as a fact, respectively, (as did the expert witnesses of both universities) that both schools preferentially based undergraduate admission decisions on race (favoring Blacks), ethnicity (favoring Hispanics) and national origin (favoring Native American Indians) at the expense of Whites and Asians.
The legal question in both cases is thus not an “affirmative action” question, but rather whether the acknowledged discrimination based on these three Protected Statuses in which both universities engaged is nonetheless “lawful discrimination.”
Said another way, discrimination law does not care whether a school discriminated based on a Protected Status (race, ethnicity, gender, national origin). Rather, discrimination law concerns itself with the question whether the acknowledged discrimination based on a Protected Status is “unlawful” discrimination, perhaps allowed as a matter of law via an “affirmative legal defense.”
For example, higher education admission case decisions have for the last 44 years (since the SCOTUS’ 1978 Bakke decision and more recently in the SCOTUS’ 2003 Grutter decision) UNIQUELY allowed universities and colleges to discriminate lawfully solely in the interest of diversity if:
- they can show the proper factual “predicate” unique unto institutions of higher learning the Court has outlined, and
- an institution of higher learning chooses to discriminate in admissions based on race, and/or ethnicity, and/or national origin, and/or gender.
While there is no central or even agreed-upon legal let alone homogenous definition of “Affirmative Action” in the United States (even while there are administrative Rules cataloging specific actions which constitute “Affirmative Action”), there is common agreement nationwide within the “Affirmative Action community” that “Affirmative Action” does NOT involve making unlawful discriminatory decisions based on a Protected Status.
Most people in the Affirmative Action community define “Affirmative Action” to mean the very OPPOSITE of unlawful discrimination: to take proactive “positive steps” to ensure that discrimination made unlawful DOES NOT OCCUR. “Affirmative Action” is thus the antithesis of unlawful discrimination in that “Affirmative Action” seeks to prevent and stop unlawful discrimination from occurring before it occurs. While I do not think it is the case that UNC and Harvard have selfishly seized on the benign term “Affirmative Action” to describe and cloak their discriminatory admission practices, what they do is NOTHING like what the Affirmative Action community across the country does as to employment or in other social programs trying to assist those suffering disadvantage in whatever field of endeavor.
Words matter, and the language UNC and Harvard have unilaterally chosen to describe their discriminatory selection practices is not “Affirmative Action” as the rest of the country practices it. UNC’s and Harvard’s selection practices are out-and-out discriminatory practices. Now it is for the SCOTUS to tell us whether it is “lawful” discrimination, or not. But, the at-issue practices are NOT “Affirmative Action” practices. Far from it.
For example, the Office of Federal Contract Compliance Programs (“OFCCP”) is the federal agency within the U.S. Department of Labor, of course, which enforces Executive Order 11246 and its implementing Rules. OFCCP’s Rules require covered federal Government contractors to engage in “Affirmative Action” and to annually develop “Affirmative Action Plans” at each of the company’s establishments within the United States.
OFCCP is the center of the Affirmative Action community within the United States. Here is how OFCCP informally defines “Affirmative Action” in the Frequently Asked Questions section of its website:
Affirmative action is defined by OFCCP regulations as the obligation on the part of the contractor to take action to ensure that applicants are employed, and employees are treated during employment, without regard to their race, color, religion, sex, sexual orientation, gender identity, national origin, disability, or status as a protected veteran. (emphases added) See 41 CFR 60-1.4, 60-300.5, and 60-741.5. The regulations state that the affirmative action obligation reaches all terms, conditions, and privileges of employment, including recruitment, promotion, termination, and compensation.”
So, OFCCP’s form of “Affirmative Action” is to require federal contractors to affirmatively “ensure” that unlawful discrimination does NOT OCCUR in employment. The notion is to proactively stop it before it starts. OFCCP’s Executive Order 11246 requirements thus proceed without preferences…i.e., “… without regard to [an applicants’ or employees’] race, color, religion, sex, sexual orientation, gender identity, national origin, disability, or status as a protected veteran.”
Indeed, OFCCP’s further FAQs specially distinguish OFCCP’s “Affirmative Action” compliance requirements from the kind of discrimination in which UNC and Harvard engage:
No. While OFCCP seeks to increase the diversity of the federal contractor workforce through the variety of affirmative action obligations described above, the obligations it enforces are wholly distinct from the concept of affirmative action as implemented by some post-secondary educational institutions in their admissions processes. In contrast to the affirmative action implemented by many post-secondary institutions, OFCCP does not permit the use of race to be weighed as one factor among many in an individual’s application when rendering hiring, employment, or personnel decisions, as racial preferences of any kind are prohibited under the authorities administered by OFCCP. See 41 CFR 60-1.4(a), 60-300.5(a) and 60-741.5(a). OFCCP, therefore, does not permit the use of race as a factor in contractors’ employment practices to achieve diversity in the workforce, either by using race as one factor among many to achieve a “critical mass” of representation for underrepresented minorities or through direct numerical quotas or set-asides. See, e.g., Fisher v. University of Texas, 136 S. Ct. 2198, 2214-15 (2016); Grutter v. Bollinger, 539 U.S. 306, 330-31 (2003); Regents of University of California v. Bakke, 438 U.S. 265, 324 (1978). OFCCP’s affirmative action regulations expressly forbid the use of quotas or set asides, provide no legal justification for a contractor to extend preferences on the basis of a protected status, and do not supersede merit selection principles. See 41 CFR 2.16(e).”
The OFCCP Rule its FAQs reference, 41 CFR Section 2.16, (written and implemented in 2000 when Shirley Wilcher was OFCCP’s Director during the Clinton Administration and lightly edited in 2014 when Pat Shiu was OFCCP’s Director during the Obama Administration), is worth reciting in its entirety. OFCCP’s Rule makes explicit that OFCCP “Affirmative Action” “Goals” neither authorize race-conscious decision-making nor tolerate discriminatory preferences based on a Protected Status in stark distinction to the discriminatory selection processes UNC and Harvard have been implementing:
“41 CFR § 60-2.16 Placement goals.
- Purpose: Placement goals serve as objectives or targets reasonably attainable by means of applying every good faith effort to make all aspects of the entire affirmative action program work. Placement goals also are used to measure progress toward achieving equal employment opportunity.
- A contractor’s determination under § 60-2.15 that a placement goal is required constitutes neither a finding nor an admission of discrimination.
- Where, pursuant to § 60-2.15, a contractor is required to establish a placement goal for a particular job group, the contractor must establish a percentage annual placement goal at least equal to the availability figure derived for women or minorities, as appropriate, for that job group.
- The placement goal-setting process described above contemplates that contractors will, where required, establish a single goal for all minorities. In the event of a substantial disparity in the utilization of a particular minority group or in the utilization of men or women of a particular minority group, a contractor may be required to establish separate goals for those groups.
- In establishing placement goals, the following principles also apply:
- Placement goals may not be rigid and inflexible quotas, which must be met, nor are they to be considered as either a ceiling or a floor for the employment of particular groups. Quotas are expressly forbidden.
- In all employment decisions, the contractor must make selections in a nondiscriminatory manner. Placement goals do not provide the contractor with a justification to extend a preference to any individual, select an individual, or adversely affect an individual’s employment status, on the basis of that person’s race, color, religion, sex, sexual orientation, gender identity, or national origin.
- Placement goals do not create set-asides for specific groups, nor are they intended to achieve proportional representation or equal results.
- Placement goals may not be used to supersede merit selection principles. Affirmative action programs prescribed by the regulations in this part do not require a contractor to hire a person who lacks qualifications to perform the job successfully or hire a less qualified person in preference to a more qualified one.
- A contractor extending a publicly announced preference for American Indians as is authorized in 41 CFR 60-1.5(a)(6) may reflect in its placement goals the permissive employment preference for American Indians living on or near an Indian reservation.
[65 FR 68042, Nov. 13, 2000, as amended at 79 FR 72995, Dec. 9, 2014]”
Without defining “Affirmative Action,” for example, the SCOTUS has nonetheless previously acknowledged that the Congress had distinguished nondiscrimination prohibitions from “affirmative action” requirements in an earlier (coincidentally) university case known as Southeastern Commun. Coll. v. Davis, 442 U.S. 397, 407-412 (1979). (The Davis case involved claims of unlawful employment discrimination and of failed disability accommodation under two laws applicable to the states: Section 504 of the Rehabilitation Act of 1973 and the Fourteenth Amendment to the United States Constitution.)
So, adverse decisions from the SCOTUS in the UNC and Harvard cases finding that one or both Universities unlawfully discriminated against Whites and/or Asians, if that is what occurs, will not leach over and limit “Affirmative Action” as the rest of the country practices it and implements the concept of Affirmative Action.
The SCOTUS has no “Affirmative Action” issues before it in the UNC and Harvard cases. People who discuss or write about the UNC and Harvard cases as “Affirmative Action” cases either have bought the semantic head fake of UNC and Harvard or demonstrate their lack of knowledge about discrimination law, and these cases, and confuse two very different legal concepts.
The UNC and Harvard cases are very simply race, ethnicity, and national origin unlawful discrimination cases and are not “Affirmative Action” cases. The SCOTUS will understand UNC’s and Harvard’s attempted public relations language shift driven by being cornered in illuminating litigation. And, I predict, the SCOTUS will not “throw the baby out with the bathwater.”