Race & Sex

Explainer Episode 69 – Discussing the Anti-Semitism Awareness Act

In this episode of the Fourth Branch Explainer podcast, Prof. Eugene Volokh, from UCLA Law School, and Prof. David Bernstein, from…

Explainer Episode 68 – What is the Pregnant Workers Fairness Act? The Equal Employment Opportunity Commission’s New Regulations

The Regulatory Transparency Project’s Fourth Branch Podcast presents Explainer Episode 68. In this Fourth Branch Explainer podcast, Rachel N. Morrison…

A Discussion on the Biden Administration’s New Title IX Regulations

The Regulatory Transparency Project presents a panel of legal experts, including Bob Eitel, Christian Corrigan, Will Trachman, and Kim Richey. Watch…

Explainer Episode 59 – Why (and How) Does OMB Classify Americans’ Race? A Brief History

It may surprise some to know that the government has definitive racial classifications for Americans, and it can be still…

DEI in the Executive Branch

On President Biden’s first day in office, he signed Executive Order 13985: Advancing Racial Equity and Support for Underserved Communities Through the…

Race & School Discipline

During President Obama’s second term, the U.S. Education Department began sharing studies indicating that black students were disciplined at higher…

Explainer Episode 56 – Affirmative Action in Employment

Affirmative action plans, though perhaps most associated with college admissions and higher education, actually crop up in a wide array…

Explainer Episode 47 – The Procedure of Title VI & IX Complaints

Title VI and IX apply to all colleges and universities that accept federal funds, which, as a condition of accepting those funds, agree they will enforce all Federal Civil Rights laws.

Explainer Episode 43 – An Agenda for Congress

In this episode, Hon. Gail Heriot, discusses her recent article for the New Criterion, An Agenda for Congress, in which she provides recommendations for Congress to adjust existing incentives that provide structural support for race-preferential admissions.

Deep Dive Episode 233 – Litigation Update: CFER v. Alameda & Raak Law v. Gast

Wen Fa provides a litigation update on two cases involving race-and-gender-based legal quotas.

Deep Dive Episode 216 – Title VI, College Admissions, and Public Opinion

Althea Nagai and Theodore Johnson joined Linda Chavez to discuss new research on public opinion regarding the use of race in college admissions.

Deep Dive Episode 212 – Litigation Update: Roberts v. Bassett: NY Racial Preferences in Allocating COVID Treatments

Wen Fa joined us to discuss the latest in his case challenging racial preferences in New York’s allocation of COVID-19 treatments.

Deep Dive Episode 207 – Litigation Update: Investigating Title VI and Title IX Complaints

Mark Perry joined Devon Westhill to provide an update on his civil rights advocacy and what he views as “troubling signs” at the Department of Education’s Office for Civil Rights.

Deep Dive Episode 202 – HUD and the Disparate Impact Rule

A panel of experts debates the pros and cons of a proposed HUD rule regarding disparate impacts.

Deep Dive Episode 192 – Gender Based Board Quotas, the Fourteenth Amendment, and Meland v. Weber

An expert panel discusses the underlying law and the likely next steps in Meland v. Weber, a case regarding gender based corporate board quotas in California.

Deep Dive Episode 191 – Talks with Authors: A Dubious Expediency

Gail Heriot and Maimon Schwarzschild discuss their recent book, which is a collection of essays examining the impact of racial diversity preferences in American colleges and universities.

Deep Dive Episode 186 – Teaching About Race in the Curriculum

This episode features a panel discussion on the current debates over how best to teach American history.

Explainer Episode 24 – The Future of Title IX Implementation

Edward E. Bartlett and Linda Chavez join the podcast to discuss the future of Title IX implementation under the Biden administration.

Deep Dive Episode 125 – The New Title IX Rules

This live podcast discusses and analyzes what new Title IX rulemaking means for students, schools, potential legal challenges, and future administrations.

Deep Dive Episode 91 – The Expected New Title IX Rules

Explainer Episode 10 – Did Harvard Admissions Discriminate Against Asians?

In Students for Fair Admissions, Inc. v. Harvard, it is alleged that Harvard admissions discriminated against Asians applicants. In this episode, Pacific Legal Foundation attorney Wen Fa discusses the case, the legal context in which the case was brought, and the case’s potential implications.

Deep Dive Episode 71 – Accounting for Race 101: Virginia Universities and Racial Preferences

This episode features audio from a September 10 panel that explored the implications of a study by the Center for Equal Opportunity that examines how five Virginia public universities preference certain applicants based on race.

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

The Texas Tech Medical School recently approved an agreement with the Department of Education’s Office for Civil Rights to end the use of racial preferences in their admissions process. Roger Clegg joins us to discuss the recent agreement and its implications.

Department of Veterans Affairs Rule Doubles Down on Abortion

On March 4, 2024, the Department of Veterans Affairs (VA) finalized “without changes” an interim final rule (IFR) entitled “Reproductive Health Services.” (You can read my summary of the IFR here.)

Supreme Court to Decide Whether EMTALA Preempts State Abortion Laws: Idaho v. U.S. and Moyle v. U.S.

Abortion is before the Supreme Court once again. This month, the Court granted certiorari in consolidated cases Moyle v. United States and Idaho v. United States.

HHS Proposes Facilitating Abortions and Medical “Gender Transitions” for Unaccompanied Children

On October 4, 2023, the U.S. Department of Health and Human Services’ Administration for Children and Families (ACF) proposed new regulations “relating to the key aspects of the placement, care, and services provided to unaccompanied children” by the Office of Refuge Resettlement (ORR). The proposed rule titled, “Unaccompanied Children Program Foundational Rule,” is open for public comment until Monday, December 4, 2023.

EEOC Enforcement Guidance on Harassment in the Workplace: Proposed Updates Raise Concerns

Rachel Morrison

Is It Lawful to Use Regulatory Impact Analysis to Achieve Equity?

J. Kennerly Davis, Jr.

Circular A-4, issued by the Office of Management and Budget (OMB), provides detailed guidance to federal agencies regarding the methodological attributes of sound regulatory impact analysis. The Biden administration has proposed modifications to Circular A-4 that were recently peer reviewed in preparation for the finalization and public release of a modified Circular A-4, perhaps by the end of this calendar year.

The Origins of the 2011 Dear Colleague Letter on Campus Sexual Assault

KC Johnson

Six years ago, I filed a FOIA request for various documents relating to the origin of the Dear Colleague letter, the 2011 Obama administration guidance on Title IX that sought to crack down on campus sexual assault by requiring universities to adjust their procedures to make it more likely that accused students would be found responsible.

Do Title IX Proceedings Count as Legal Processes, or Don’t They?

KC Johnson

The Obama administration’s efforts to use Title IX to pressure universities to crack down on campus sexual assault transformed higher-education law. To date, 512 accused students have filed federal lawsuits (more than 200 have filed suit in state courts), and they’ve enjoyed surprising success—securing favorable rulings from the First, Second, Third, Fifth, Sixth, Seventh, Eighth, Ninth, and Tenth Circuit Courts of Appeal. The specific facts and legal theories vary from case to case. But the core issue remains whether campus procedures that “have been compared unfavorably to those of the infamous English Star Chamber” have sufficient procedural integrity to be reliable.

Racial Preferences in Government Contracting: How It Happens and Why It’s Wrong

Wen Fa

Wen Fa discusses racial preferences and the public contracting process.

Why Did California’s Prop 16 Fail? A County-by-County Assessment

Althea Nagai

The numbers suggest that a majority of voters simply disliked racial/ethnic/gender preferences.

Real Harms from Racial Discrimination in Harvard Admissions

Wen Fa

“If you are an Asian American — or even if you simply have an Asian or Asian sounding surname — you need to be careful about what you do and don’t say in your application.” That’s from The Princeton Review, and it’s indicative of what Asian-American teenagers can expect to read in college admissions guidebooks and hear from high school counselors.

Good Intentions Gone Awry: Racial Quotas in Connecticut Schools

Wen Fa

Hartford, Connecticut is a modern day tale of two cities. The city has world-class magnet schools, where students have access to butterfly vivariums and some of the best education the state has to offer. Then there are failing neighborhood schools, where rust has changed the color of traffic signs and where many children’s hope for a brighter future have been extinguished.

Texas Tech Abandons Racial Preferences in Medical School Admissions

Roger B. Clegg

Texas Tech’s medical school recently agreed to stop using racial and ethnic preferences in its admissions.  This came about because of a complaint against Texas Tech filed in 2004 by my organization, the Center for Equal Opportunity, and the ensuing 15-year investigation by the Department of Education’s Office for Civil Rights, headed now under the Trump administration by Ken Marcus.

Trump Administration Withdraws Guidance on Affirmative Action In Admissions

Alison Somin

On Wednesday, July 3, the Departments of Education and Justice announced that they withdrew a group of Obama-era guidances regarding the use of race in school admissions.

Affirmative Discrimination Against Asian American Applicants in College Admissions

Althea Nagai

The Asian American population and the number of Asian Americans going to elite colleges in the United States have exploded in the past few decades. However, since the 1990s, some admissions officers seem to regard being Asian American as a “minus” factor in an application even as they see being black or Hispanic as a “plus.” It’s not as if a college explicitly states that it needs to cap the number of Asian Americans admitted so that more applicants who are not of Asian lineage can get in.  Instead, commitments to “holistic admissions” and racial and ethnic “diversity” do the job.

U.S. Commission on Civil Rights Report on Educational Equity – Commentary

Carissa Mulder

The U.S. Commission on Civil Rights recently released a report entitled, “Public Education Funding Inequity in an Era of Increasing Concentration of Poverty and Resegregation.” The report argues that children from low-income families tend to live in school districts that have less money than children from wealthier families. Despite the report’s emotional language, these funding gaps are not as stark as one might suppose.

Outstanding New Article on “Disparate Impact” and School Discipline

Roger B. Clegg

Gail Heriot and Alison Somin have written an important article that will appear in the Texas Review of Law & Politics, “The Department of Education’s Obama-Era Initiative on Racial Disparities in School Discipline:  Wrong for Students and Teachers, and Wrong on the Law.”