Deep Dive Episode 52 – Race In Admissions: Texas Tech Medical School

The Texas Tech Medical School recently approved an agreement with the United States Department of Education’s Office for Civil Rights to end the use of racial preferences in their admissions process. The agreement was reached after over a decade of negotiation, initiated by a complaint filed by the Center for Equal Opportunity against Texas Tech in 2004. The agreement is a promising sign for opponents of racial preferencing in school admissions process, and could have significant implications for the future.

Roger Clegg joins us to discuss the recent agreement and its implications.


Although this transcript is largely accurate, in some cases it could be incomplete or inaccurate due to inaudible passages or transcription errors.

Operator:  Welcome to Free Lunch, the podcast of The Federalist Society’s Regulatory Transparency Project. All expressions of opinion are those of the speakers. On April 15th, we co-sponsored a teleforum call with The Federalist Society’s Civil Rights Practice Group which recapped a recent agreement from Texas Tech Medical School and the Department of Education’s Office of Civil Rights to end racial preferences in the school’s admissions process.

Roger Clegg, who is the President and General Counsel at the Center for Equal Opportunity joined us to discuss their agreement and its implications. We hope you find it interesting and enjoyable.

Micah Wallen:  Welcome to The Federalist Society’s teleforum conference call. This afternoon’s topic is “Race in Admissions: Texas Tech Medical School.” My name is Micah Wallen, and I’m the Assistant Director of Practice Groups at The Federalist Society.

As always, please note that all expressions of opinion are those of the expert on today’s call.

Today, we are fortunate to have with us Roger Clegg, who is General Counsel of the Center for Equal Opportunity. After our speaker gives his remarks, we will then go to audience Q&A. Thank you for sharing with us today. Roger, the floor is yours.

Roger B. Clegg:  Well, thank you very much, Micah, and thank you for setting this up so quickly. This is, I think, prompted by a news story that the Wall Street Journal broke less than a week ago. So it shows the lightning speed and efficiency of The Federalist Society. What I’d like to do in my opening remarks here is briefly give sort of an introduction and overview and then talk about, first of all, the facts of the Texas Tech matter and then talk briefly about what this says about the Trump administration and then some about the legal implications. So that’s the basic roadmap. And the other thing that I want to make sure that I give some attention to, which is kind of woven through this discussion, is going to be what this tells us about the procedures at the Department of Education’s Office for Civil Rights when they deal with complaints.

The subtext, and sometimes the overt text, is going to be that, I think, conservatives should be alert to the opportunity that they have to file complaints with the Office for Civil Rights. And it’s often, I think, a very valuable tool, and the facts of this case I think illustrate why that is the case. Okay. So what happened? A resolution agreement was reached between the Trump administration — the Office for Civil Rights at the Education in Texas Tech Medical School recently in which the school agreed to stop using racial preferences in their admissions. This is a big deal. Lots of selective schools use racial preferences and, in particular, lots of medical schools use racial preferences. And it’s important that Texas Tech stopped.

The reason that this came about was that my organization, the Center for Equal Opportunity, a long time ago, in 2004, filed a complaint against Texas Tech University in which we complained about their use of racial preferences. Obviously, this had a long gestation period, but, eventually, what we got out of it was a resolution not only that the medical school would stop giving it but the other parts of Texas Tech that were investigated — undergraduate admissions and other schools in the health science area, like pharmacy and so forth and nursing, also are not using racial preferences. The reason that we chose to file a complaint against Texas Tech in 2004 was that it presented an unusual situation.

The Fifth Circuit had ruled in the 1990s that the desire to have a diverse student body was not a compelling interest under the Equal Protection Clause. At the time, the Supreme Court, of course, had not adopted Justice Powell’s opinion in the Bakke case, which was decided in 1978. Justice Powell wrote, just for himself, and saying that he thought that diversity was a compelling interest. No other justice joined him. A lot of schools seized upon this and were using racial preferences. But the Fifth Circuit, in a case called Hopwood, decided that no, that was not right, that it was not a compelling interest.

So the law in the Fifth Circuit, from the 1990s until the University of Michigan decisions were decided by the Supreme Court in 2003, was, basically, that you could not use racial preferences in admissions. The Supreme Court, as I just said, ruled in 2003, however, that, no, Justice Powell is actually correct and that diversity was a compelling interest. Immediately after that, Texas Tech said that, “Oh, great. This is a wonderful decision, and we’re going to start using racial preferences again.” What we decided at the Center for Equal Opportunity was that, even if it was true that diversity was a compelling interest — and, of course, we didn’t like the Supreme Court’s decision.

But even if taking that as true, one of the elements of narrow tailoring under the Supreme Court’s decision was that schools use race only as a last resort, that they have considered race-neutral alternatives to achieving a diverse student body before adopting racial preferences. And our argument was, in the complaint that we filed with the Education Department, was that that element of narrow tailoring was not met because not only had Texas Tech tried a race-neutral alternative to racial preferences, but it had worked. And we had the figures to show that the degree of diversity at Texas Tech was actually better than it was in the University of Michigan cases. And, of course, one of them had been upheld. One had been struck down.

But in any event, we said that, look, they had as much diversity as the University of Michigan had. University of Michigan thought that that was enough. Therefore, it should have been enough for Texas Tech, as well. The reason, by the way — or one of the reasons that Texas Tech University undergraduate admissions might have succeeded in having this degree of diversity was that, as some of you may recall, Texas public universities, after the Hopwood decision, adopted this so-called top ten percent plan where if you graduated in the top ten percent of your public high school graduating class in Texas you could go to any university you liked. And this had the result of increasing the amount of student body diversity. So we filed this complaint with the Education Department, and this was under Bush 43.

And, again, it took a long time for anything to happen. But finally, last year, we began to get phone calls from the Education Department. First of all, the undergraduate admissions people decided that — it turns out that they said that they weren’t using racial preferences anymore. And then, as part of their investigation, the OCR was looking at the health sciences schools. And they all said, one by one, that either they weren’t using racial preferences, or that they would stop or had stopped. Though, they’d used them before. And then finally, the last domino to fall was, in February, the medical school, which had been using racial preferences, said that it would not anymore. And it signed this resolution agreement.

By the way, all the relevant documents are on our website, which is, including this two-page resolution agreement. What they said was that they were going to stop using racial preferences as of March 1st and that, if they ever wanted to start using them again, they would have to get permission from the Education Department. And they would have to show that their use of racial preferences was narrowly tailored. After we learned of this, we decided that, well, this is good news, and this is something that schools should know about. So we shared the story with the media, starting with the Wall Street Journal and then with other media as well. It was not a story that was initially publicized by the Education Department. It’s sort of interesting that the — and I’ll be talking more about this.

But the basic approach of the Office for Civil Rights under the leadership of Ken Marcus, who’s the Assistant Secretary for Civil Rights at the Education Department, is that this is not supposed to be a political operation. It’s not supposed to be — it’s a law enforcement matter, and that means you don’t have lots of press releases and things like that. You receive complaints, and you look at them and decide if there’s something that should be investigated. And then you investigate them, and you resolve them. And you go on to the next complaint. The takeaway from this is, I think, two-fold, maybe three-fold.

The first thing that it shows is that the Trump administration is going to take seriously its responsibility to enforce the Civil Rights laws in a way that protect all America from discrimination. It’s not going to turn a blind eye to politically correct discrimination the way the Obama administration did. So that’s, obviously, good news. This is not the first time, I should say, that the Office for Civil Rights — or that the Trump administration has done the right thing in this area. The Justice Department, for example, is investigating Harvard and Yale for its undergraduate admissions discrimination, particularly against Asian Americans. It filed a statement of interest in the Harvard case supporting the claim by Asian Americans there of discrimination by Harvard.

Another example is the skepticism that the Trump administration has shown towards to disparate impact approach to civil rights enforcement, which is — I view as a species of racial preferences. It certainly encourages race-based decision making and encourages the use of racial preferences and quotas. And the Trump administration has withdrawn guidance by OCR and by the Justice Department that used a very aggressive kind of disparate impact enforcement in the school discipline area. It also withdrew guidance about Affirmative Action specifically. They’ve shown skepticism, as well. They’re reevaluating the disparate impact regulations in the housing area and so forth.

I should say that the one area where I think conservatives have some concern is with the Department of Labor. My own view is that the regulations that have been promulgated by the Labor Department for the enforcement of Executive Order 11246, which has to do with federal contracting, are long overdue for an overhaul because they require that goals and timetables be set when employers have, quote, “underrepresentation,” of, quote, “women and minorities.” And I think that there are real constitutional and statutory problems with that. And I’m hopeful that the Trump administration will — that the Labor Department will act on that sooner rather than later, as well.

The bottom line, with respect to the Trump administration, is that it’s doing a good job in this area and that, in particular, this action with respect to Texas Tech Medical School is more evidence of that. With respect to the law, I think that the more schools that stop using racial preferences in admissions, the more difficult it is for the remaining schools to claim that their use of racial preferences is constitutional and consistent with the Civil Rights laws. That’s because, as I mentioned earlier, the Supreme Court has made clear that race is not supposed to be used except as a last resort. And if you have schools all over the country that are not using racial preferences and are thriving, then what’s the argument that the remaining school has to use racial preferences in order to operate?

To give an example, racial preferences are not used at public universities in California, Washington, Arizona, Nebraska, Michigan, and Oklahoma. If the medical schools in California and Washington aren’t using racial preferences, then why do the public medical schools in Oregon have to use them? And if racial preferences aren’t being used now at medical schools in West Texas, which is where Texas Tech is, or Oklahoma or Arizona, then why do Colorado and New Mexico have to use racial preferences? If they’re not being used in Nebraska and Michigan, then why do they have to be used in Wisconsin and Iowa and so forth? So I think that this is an important point and is — so decisions like the one that was reached at Texas Tech helped to advance the ball more broadly.

I want to say just a few words about the complaint process at the Office for Civil Rights at the Education Department because I think it’s a process that a lot of people may not be familiar with, and I think it’s one that is potentially useful, in particular, for conservatives to be aware of and to use. Basically, the way that it works is that there’s not a standing requirement in the sense that you have to file a lawsuit. If someone is aware that discrimination is ongoing in a particular instance, that person can simply send a letter to the Education Department describing the discrimination and asking that it be investigated.

And when that happens, the Education Department’s Office for Civil Rights will look at it, make an initial determination of whether what’s being alleged would, if true, be a violation and that the institution doing the discrimination is covered by the laws that CR enforces, and then begin an investigation. And of course, with respect to public — with respect to universities, if you get federal money, then Title VI of the Civil Rights Act prohibits you from engaging in racial discrimination, except in narrow circumstances. So OCR has jurisdiction, and all universities in the United States get federal money except, I think, for two: Hillsdale and Grove City. My understanding is that the Education Department prefers if you can point to people who are aggrieved by the discrimination.

I think that that helps them sort of prioritize which complaint to investigate first, and it also is useful evidence if they want to start interviewing people to find out exactly how the discrimination is occurring. But I don’t think it’s an iron-clad requirement. So the investigation begins. Of course, this is something of a black box. I don’t know exactly — and I think that the people who file the complaints don’t know exactly how things are proceeding. Typically, OCR will contact the university. After they’ve gotten all the information they can get from the complainant, they will then contact the university. And a long time can go by without the complainant hearing anything else about what’s going on. And, you know, sometimes you win these cases and sometimes not.

I think that what happened in Texas is actually illustrative of that. At the same time that we filed a complaint against Texas Tech, we also filed a complaint against the University of Texas and against Rice University. Of course, we won, ultimately, against Texas Tech. It took a long time, but we did win. Against the University of Texas, what happened was that, eventually, of course, the University of Texas was sued for this discrimination. Therefore, our case was closed. I think that the view of the Education Department is that, well, if the matter is being decided in court, we don’t need to proceed administratively. That was the end of that complaint. And then in the other instance, the OCR decided under the Obama administration that actually the use of racial preferences was okay.

So you don’t always win, but, of course, you can have two bites at the apple. If you file a complaint with OCR and a long time goes by or you think that it’s not headed in the right direction or you even lose, you can always file a lawsuit then. You’re not precluded from filing a lawsuit and proceed that way.

Let me mention just two other things about the situation at the Office for Civil Rights right now. I mentioned that the head of the Office is Ken Marcus. Ken Marcus is a solid conservative, a very fine lawyer, smart guy, knows this area very well. And he has written, in particular, about the importance of narrow tailoring requirement and the importance that they be met before racial preferences are used.

So I think that the failure of a university that’s using racial preferences to consider race-neutral alternatives, for example, is one that he’s particularly interested in. And that’s sort of indicated by the resolution agreement that was reached in this case. But it is possible, as well, to prevail on the first prong of strict scrutiny. Another complaint that we filed, that was almost as long in getting resolved, was against the State of Kentucky’s Education Department, which had a program that used racial preferences in awarding financial aid to people who wanted to become teachers. The idea was that it would be a good thing if there were more teachers of a particular color rather than the disfavored colors in Kentucky and that, therefore, they were going to fund students who were the right color and not those who were the wrong color.

That complaint was also resolved favorably for us under the Trump administration. And there, the failure that was adduced was one that there was really no compelling interest, that, indeed, the Supreme Court has rejected the role model of justification in the Wygant case. And that justification had been one of the things that had been put forward by Kentucky in that the remedial justification that had been offered was not a plausible one in this context either. Therefore, the use of racial preferences there failed because of a failure to identify a compelling interest.

I would encourage people out there who are aware of discrimination and have good evidence that it’s occurring be alert to the possibility of filing complaints with the Office for Civil Rights at the Education Department. I think that they are quite interested in getting complaints, and I think that they will handle them well. Obviously, as I said before, it’s better if you can identify aggrieved people, but I don’t think that that’s necessarily required, particularly if the discrimination can be identified through public actions or pronouncements or statements by the universities. Because of the fact that the people who run universities tend to be politically correct to the nth degree and are very proud of their politically correct discrimination, it’s often the case that they make unguarded remarks that would probably cause their general counsel to wince.

When those remarks are made and discriminatory programs are launched or are underway, I think that filing a complaint with the Education Department’s Office for Civil Rights is a good thing to keep in mind. With that, Micah, I’m going to stop talking, if you want to ask people out there in teleconference land to call in with questions or comments. I’d love to field them.

Micah Wallen:  I’m not seeing any questions jump through the queue right away. Roger, I’ll ask you why do you think it took so long for OCR to process the complaints in the first place?

Roger B. Clegg:  That’s a really good question. I think that part of the answer may be — and I’m speculating because, as I say, it’s something of a black box. One suspects that the complaint was viewed very differently under the Obama administration than it was under Bush 43 and under Trump. And it may have been the case that things were going along fairly aggressively under Bush 43 but that, once that stopped — you had different people who were at the head of OCR. Some might have been more interested in this case than others. I don’t know. In any event, once the Obama administration came in, there was decidedly less interest. I think it’s significant, though, that, even under the Obama administration, this complaint was not dismissed, which I think is evidence that there really was a problem with the way Texas Tech was operating.

My sense of the way these complaints are processed is that it’s not just a matter of fact-finding by the Office for Civil Rights. In addition, where they see that there’s a problem or a potential problem, they start to lean on the universities, to one extent. If they’re getting answers that suggest that there’s a problem, they start to say, “Well, you know, do you really think that you have to use race in order to award these scholarships, for example, or to run your medical school? Have you really looked at this? This looks very shaky to us. And rather than lose your federal money”—of course, which is the ultimate hammer here—“I think it might be useful for us to try to work things out.”

Again, I don’t know for sure that that’s what happens, but I definitely have the impression that this is not just a matter of collecting the facts without any kind of back and forth about whether what they’re finding is problematic or not. And I say that because, with a lot of the complaints that we’ve filed, the resolution is that you have these voluntary agreements that are reached where the school either agrees to stop using race or they say, “Well, you know, actually, we may have said that race was being considered, but we didn’t really mean it. Or it actually wasn’t being used quite as handily as we said. We may have said that this scholarship was only for African-Americans. But in fact, we’d be happy to consider other people, too.”

All of which is to say that the process can — these are reasons why the process might have taken a while because, ultimately, as I said in my outline of the facts, not only did — the final outcome was not just that the medical school entered this resolution agreement in February, last February, but that Texas Tech University had been using racial preferences. But then they stopped. I think the pharmacy school had been using racial preferences, but then they stopped. And the other schools in the health science department said that, “Well, actually, you know, we’re not using racial preferences.”

That’s a long answer to your question, Micah. But I think that the reason it took so long is because there’s a political explanation that these different administrations sort of look at this differently but also that what’s going on here is a little more complicated process than just a quick collection of facts and then a determination. I think there’s a lot of back and forth that goes on as well.

Micah Wallen:  Thank you, Roger. And we did have two questions come through. Without further ado, we will now go to our first question.

Caller 1:  My question is kind of more of a general one, and that is why have we focused so much on racial preferences, whatever racial means, and not ever looked or barely looked — I guess now Harvard is being forced to because of our Asian students. But I also happen to live in an area where there’s a large number of people from the Middle East, and it seems to me that, if you’re going to have a diverse population, it would probably — one could argue that there ought to be a large number of people with a Middle Eastern background or family background also ought to be at Texas Tech.

And of course, you do have people from Mexico and other South American countries. So I just find it hard that even this diversity focuses on one race and it doesn’t kind of include a number of other groups that perhaps also may add to the diversity of one college or medical school. It just seems very odd to me.

Roger B. Clegg:  Well, thank you. Thank you for that question, and that’s an interesting question. And I’m going to divide, I guess, my answer into two parts. I think that with respect to — I’m going to start by saying that the law that the Office for Civil Rights enforces here, Title VI of the 1964 Civil Rights Act, forbids discrimination on the basis of race, color, or national origin. So if you — for example, let’s take religion. I think that having people from diverse religious backgrounds, certainly, can add the kind of diversity of perspectives and experiences and so forth — that if you believe in the value of diversity, that’s one kind of diversity that ought to be taken into account. Or diversity of simple geographic background — people from Montana or Ohio versus Texas and Florida, differences in socioeconomic background.

All of those, I think, are important kinds of diversity. But giving preferential treatment or weighing that doesn’t raise any legal issue. There’s nothing illegal about giving a preference to people from Ohio over people from Alaska. Or even, in terms of the Title VI, there’s nothing that says that there’s anything illegal about preference on the basis of religion. And of course, there’s nothing illegal about preference on the basis of socioeconomic background. My first answer to you is that some kinds of diversity, discrimination are not of interest to enforcement people in the federal government because they don’t raise any legal issues.

But with respect to the kinds of racial and ethnic discrimination, I do think that those kinds of diversity, for good or ill, are looked at by universities, to some extent. They do raise legal problems. As your question indicated, it’s not just whites who are frequently discriminated against by politically correct discrimination. Frequently, Asian Americans are discriminated against in favor of African Americans and Latinos. Latinos, by the way, I think is not a racial category. It’s really an ethnic or a national origin category. But it’s certainly true that some groups are of interest to universities to increase their numbers and other groups aren’t.

I think that’s the nature of the politically correct ideology that’s in place here. Universities are not interested in the diversity that might be provided by a particular white or Asian American applicant. They want to get their numbers right or what they consider to be right with respect to so-called underrepresented minorities, which typically African Americans and Latinos and to some extent, sometimes, American Indians. It’s a good question, and thank you for asking it.

Micah Wallen:  And we will now go to our next question.

Ken Masugi:  Hi, Roger. It’s Ken Masugi. Thank you again for all the good work you’ve been doing, especially recently on Asian American admissions at Harvard. I have a question based on what you just said. And I wonder — let’s say Texas Tech thinks it has an obligation to try to erase the condition of Black Americans in Texas. So it decides to have a program in which they don’t practice what we conventionally call Affirmative Action, but rather they have sort of outreach programs that encourage African American students to apply. And they target, in particular, areas in which there might be African Americans. They might target not just public schools but private schools. Given your standard of colorblindness, would such outreach programs violate the Constitution?

Roger B. Clegg:  Well, thank you, Ken. That’s a great question, and I should say, in the interest of full disclosure, that Ken’s lovely wife, Althea Nagai, is the author of some of the Center for Equal Opportunity papers that have been released recently on Asian American discrimination. Althea does great work, and I have great affection and respect for Ken, as well. My view is that if a university decides that it wants to get more people of one race and that it’s going to start fiddling around with its recruiting and admission requirements in order to increase the numbers of one race, that that is a constitutional problem. We’re dealing here, obviously, with a zero-sum game. If you’re trying to increase your numbers of one race, then that means you’re trying to keep down the numbers of other races.

I think you can see the problems in this area. I think it’s always useful to put the shoe on the other foot and ask, “Well, what if this were being done in the bad old days, and Ole Miss said that we want to keep out African Americans to the extent that we can. And we know that we can’t just say that you’re not allowed to apply or you’re not going to get in if you’re African American. But we are going to change our recruiting policies so that they are friendly toward white students. We’re going to recruit only at all-white schools, and we’re going to send our letters encouraging people to apply only to ZIP Codes that tend to be white. We’re going to look at sports that tend to be dominated by whites, and we’re going to start decreasing the weight that we give to admissions criteria that we used to look at. But we’re not going to look at it anymore because they seem to be ones that are giving us too many Black students.”

I think everybody would immediately agree that, well, that’s a problem. Ole Miss couldn’t do that. And I think, by the same token, it’s certainly racial discrimination. It’s like a grandfather clause. If you deliberately engage in selection practice — if you choose your selection practices or you engage in recruiting in a way that’s sort of aimed at some racial groups and trying to avoid other racial groups, that’s a problem. A grandfather clause may not be discriminatory on its face, but it certainly is intended to keep out — to keep African Americans from voting. So the Supreme Court said that you can’t do that.

Now, the Supreme Court has also said, though, that, in this area of university admissions, that achieving — the educational benefits of diversity is a compelling interest and that it is okay for the consideration of race to be something that can be done, that can be engaged in, in order to achieve those educational benefits. But they’ve also said that the use of race has to be narrowly tailored. And that means that it’s better to use indirect and race-neutral methods to achieve a racial result than to use simple overt preferences. So that for purposes of the narrow tailoring prong, it does matter. Even if you’re being motivated by race, it’s better to engage in the kind of facially neutral kinds of discrimination than kinds that are overtly discriminatory.

For example, if Texas Tech or some other school said that, “Well, you know, look. We want to have racial diversity. We can choose a couple ways to do it. One is we’re just going to have preferences for Blacks, but the other is” — let’s take Latinos because that, I think, gives rise to a better example. “One is that we can just give a preference to Latinos, but the other is that we can start considering somebody’s facility with more than one language.” There actually are some reasons why having a facility with more than one language makes some sense. It’s nice if doctors can speak to patients who may not speak English. “It will improve our numbers for Latinos, but it’s not as discriminatory as simply giving a preference to Latinos.” I think that the law would be — well, that’s more narrowly tailored.

And I think that the Education Department would say, “Yeah. If you had the choice between those two, then the law requires you to engage in the less discriminatory, the facially race-neutral alternative.” Very long answer to your excellent question, Ken. You have to make a distinction between whether you’re talking about whether strict scrutiny is triggered, on the one hand, where I think that facial neutrality doesn’t save you if the motive is discriminatory. But that whether or not a policy is narrowly tailored or not, it does matter whether you’re talking about something that may be racially motivated, but the Court’s case law seems to indicate that it’s better to do it in a way that is using a facially neutral approach.

Micah Wallen:  All right. We now have three questions in the queue, so without further ado, we’ll move to the next question.

Ken:  This is another Ken. Are there any cases or any regulations that discuss what it in fact means to be African American, like what percent do you have to be? I know there’s percentages and all that with American Indians. But like what is somebody who’s Black or Latino? What does that mean? If one of your parents is or is not, that’s 50/50, obviously. What percent do you get down to?

Roger B. Clegg:  Another great question. Ken the Second, thank you for that. I’m not aware of any American, U.S. regulations that specify that. I think that, sometimes, you do have to supply evidence supporting your claim to be of this or that race. But I’m not aware of anything that has the kind of specificity that you were talking about. I think when you think about it, it’s obvious why. Justice Kennedy, in an opinion that he wrote in a case called Metro Broadcasting, and Justice Stephens in another contracting case called Fullilove v. Klutznick, both of whom were writing against the use of racial preferences, pointed out that — rather sardonically that if you’re going to be serious about this, then you’re going to have to define who the members of these different groups are.

And you’re going to need to start looking at statutes like the one that Nazi Germany had and like the ones that South Africa had. They did have the kind of specificity that you’re talking about, where you’re considered a Jew if you have a grandparent who is Jewish. A great-grandparent is not enough, that kind of nonsense. I think that once the government started to do that, it would become quite offensive and quite obvious how ugly this kind of discrimination is.

My answer is that I don’t think that that’s done in any American statutes that I’m aware of. And I think that one reason for that is actually why this whole business of giving preferential treatment is, ultimately, even more untenable in a country that’s becoming more and more multiethnic, more and more multiracial, and where individual Americans are more and more likely to be multiracial and multiethnic.

If we start asking people questions like that and requiring DNA tests and so forth to decide how the government is going to treat you, the offensiveness of this whole enterprise becomes even more apparent than it already is.

Micah Wallen:  All right. We will now go to our next question.

Chris Garvey:  In answer to the last question, there are no standards in the Civil Rights Acts about who’s what race. You can be any race you say you are, just ask Pocahontas. But the fact that — when you mentioned it being a zero-sum game, isn’t the reason that it’s a zero-sum game because the American Medical Association has artificially limited the number of people who can graduate from medical schools — from certified medical schools? And they can control licensing in all states, as Ron Paul said years ago, and thereby artificially made it a zero-sum game that can’t be expanded and kept the price of medicine high by those licensing rules. By the way, I’m Chris Garvey. I’m the last Libertarian candidate for Attorney General in 2018.

Roger B. Clegg:  Very good. Thank you for your question, Chris. It’s certainly true that the restrictions placed on who can practice medicine make the slots that are being fought over even more dear than they would otherwise be. I think, though, that for individual schools, it would still be a zero-sum game — that is, even if the law were somehow changed and anybody could practice medicine, there would still be only a certain number of slots that were available to Harvard Medical School or to Texas Tech Medical School. So it would remain a zero-sum game in that respect, even though for society generally the number of people who could practice medicine would be not as limited.

I’ll take your question, though, to make a related point that I think is worth making. Which is that, as disturbing as the use of racial preferences is when we’re talking about who gets into this or that undergraduate institution — after all, there pretty much is the case that anybody who wants to go to college can. There will be a university or a college some place that will take them since a lot of them are basically open admissions. It does seem especially ugly and disturbing when we are using non-meritocratic standards to determine who’s going to be practicing in an area where there are, literally, life and death responsibilities. We are saying that we are more interested in having a politically correct array of doctors than having the best-qualified individuals who can be doctors, even if this results in the quality of doctors going down and inevitably with the kind of medical care that people get going down.

And that means more people die. So I think when you start using racial preferences in this particular context, again, it sort of underscores the ugliness and the unacceptability of this whole enterprise.

Micah Wallen: We’ll now go to our last question.

Caller 4:  Yes. Hello, Roger. Thank you for hosting this call. I have one comment and one question. The question earlier about whether or not it would be a problem legally with targeted recruiting, I guess that sort of rings very similar to the Griggs v. Duke Power case. It’s not exact. But he was talking about district impact and its effect, even though there’s an underlying purposeful intent to discriminate. So I guess with that precedent, probably the targeted recruiting could be a problem, at least as far as precedent. I happen to think that the Griggs v. Duke Power Company case was incorrectly decided, but I’m probably in the minority there.

My feeling is that as long as facially neutral the policy, whatever the effect is, even if the effect is somewhat — the purpose is improper, I think you just have to sort of let it go. So I personally wouldn’t — as a legal, constitutional matter, I think target recruiting wouldn’t be a problem. You can comment on that, if you’d like.

But I want to ask one other question. Since Texas Tech has made its decision to eliminate this racial preference policy, has there been any uproar about this as far as Civil Rights groups, the International Urban League or whoever creating a problem? I haven’t heard anything in the news about this. I was just wondering if this has really caught on and if there’s been a lot of push back as the result.

Roger B. Clegg:  Well, thanks very much for both your comment and your question. I’ll do your question first. There was a lot of media, a lot of news stories about this, and I think that there are plenty of people in the Civil Rights establishment out there that use this as an opportunity to attack the Trump administration and to say that this is a bad thing, that use of racial preferences is wonderful, and anything that suggests there’s going to be less use of racial preference is a bad thing. So they condemned the resolution agreement.

On your comment, I also think that Griggs was wrongly decided, but I also think that there’s a big difference between using a facially neutral criterion — selection criterion without an intent to discriminate against some groups and other groups versus using a facially neutral criterion with that intent. And I don’t like the disparate impact approach. I don’t like the decision in Griggs. But remember what was going on there and what’s going on in the context of a disparate impact lawsuit is not just something where the employer thinks that, for example, requiring a high school diploma — not just where the employer has chosen a criterion that is neutral on its face, but where his intent was not to give an advantage or disadvantage to any racial or ethnic group.

The intent was not discriminatory. The employer just thought that, well, this is a good way to sort of do a rough cut of kinds of employees who might work out here. It’s not perfect, but if you have a high school diploma, it shows that you have a certain degree of self-discipline and education. That’s what I want. That’s different than somebody who says that, “Well, look. I know that there are a lot fewer Blacks in my neck of the woods who have high school diplomas than whites. So even though I don’t really — I’m hiring ditch diggers and it doesn’t really make any difference whether they have a high school diploma or not, this is a great way to hire more whites and fewer Blacks. So that’s why I’m going to adopt it.”

If you are adopting a selection criterion that may be neutral on its face but you’re doing it with discriminatory motive, that is not a disparate impact violation. That is disparate treatment. That is intentional discrimination. The Supreme Court, in Arlington Heights, has said that, that the Constitution forbids only disparate treatment. But if you choose a neutral criterion, like a grandfather clause, again, because you want to hurt or you want to target a particular racial group, that’s not disparate impact. That’s disparate treatment.

Roger B. Clegg

Board Member

Center for Equal Opportunity

Race & Sex

The Federalist Society and Regulatory Transparency Project take no position on particular legal or public policy matters. All expressions of opinion are those of the speaker(s). To join the debate, please email us at [email protected].

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