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Final Report of the 1776 Commission
Commissioner Kirsanow served on President Trump’s 1776 Advisory Commission, which released its final report a few days ago. The final report is available here: http://www.newamericancivilrightsproject.org/wp-content/uploads/2021/01/The-Presidents-Advisory-1776-Commission-Final-Report.pdf .
Decision in American Insurance Association v. HUD: Fair Housing Act Does Not Support Disparate Impact Claims
HUD suffered a blow today when Judge Richard Leon of the District of D.C. ruled that the Fair Housing Act (FHA) only permits claims of discrimination based on disparate treatment. Therefore, HUD exceeded its rulemaking authority when it promulgated a rule, “Implementation of the Fair Housing Act’s Discriminatory Effects Standard,” in February 2013 providing for claims of discrimination based on disparate impact. Judge Leon granted the plaintiffs’ motion for summary judgment and vacated the rule.
Until February 2013, HUD had never promulgated a rule that purported to enshrine disparate impact as a cognizable claim under the FHA and instead relied on precedent. As Judge Leon notes in his opinion, HUD received a scare in 2011 when the Supreme Court granted certiorari in Magner v. Gallagher, which argued that disparate impact claims were not cognizable under the FHA. Although the Court has been prevented from ruling on the question by last-minute settlements in both Magner and Mt. Holly v. Mt. Holly Citizens in Action, one day a FHA case would likely be decided (in fact, the court has a third chance to rule on this issue this very term in Texas Dept. of Housing v. Inclusive Communities Project). And so, hoping that Chevron deference would accomplish what the text of the FHA likely could not, HUD promulgated a rule enshrining disparate impact causes of action under the FHA.
Judge Leon writes, “I must, in the final analysis, determine whether the text of the FHA unambiguously evidences Congress’s intent for [disparate impact] claims to be cognizable under the Act.” (Mem. Op. at 16) He determined that the text of the FHA did not support such an interpretation, and that “only disparate treatment (intentional discrimination) claims are cognizable under the FHA.” (Mem. Op. at 16) The text of the FHA only prohibits disparate treatment, and there is no clear language prohibiting practices that result in “discriminatory effects” or “disparate impact.” For instance Smith v. City of Jackson, Justice Stevens wrote that “the text [of the Age Discrimination in Employment Act] focuses on the effects of the action on the employee rather than the motivation for the action of the employer.” Smith v. City of Jackson, 544 U.S. 228, 236. In contrast, Judge Leon writes, the text of the FHA focuses only on discriminatory actions, not discriminatory effects.
Judge Leon also notes that it is clear Congress did not intend for the FHA to encompass disparate impact claims because it did not amend the statute to do so. (Mem. Op. at 22-26) Congress amended or enacted three major civil rights laws in the late 80s and early 90s. It amended the FHA in 1988, enacted the Americans with Disabilities Act in 1990, and amended Title VII in 1991. Congress provided for disparate impact causes of action in the ADA and the 1991 amendments to Title VII. It made no such change to the FHA. If Congress wants to include disparate impact provisions in a statute, it knows how to do so. It did not do so here, which strongly suggests that it did not want the FHA to include claims based on disparate-impact liability.
The fact that the rule extended disparate impact liability to homeowners insurance also brings the rule into conflict with the McCarran-Ferguson Act. (Mem. Op. at 25-29) The McCarran-Ferguson Act is intended “to ensure the primacy of state law in regard to insurance regulation.” (Mem. Op. at 26) By requiring insurers to collect demographic data on customers, the disparate-impact rule conflicts with a number of state statutes. Judge Leon writes that it is impossible to believe that Congress intended the FHA to trump state insurance regulations. “To the contrary, it is utterly incomprehensible that Congress would intentionally provide for disparate-impact liability against insurers in the FHA, where doing so would require those same insurers to collect and evaluate race-based data, thereby engaging in conduct expressly prohibited by state law.” (Mem. Op. at 29)
How did Chevron deference come into this decision? The portion of the opinion dedicated to Chevron was much shorter than might have been expected because Judge Leon determined, for the reasons detailed above, that the rule failed the first step of the Chevron test. There is no ambiguity as to whether Congress intended the FHA to include disparate-impact liability. It unambiguously intended the FHA to prohibit only disparate treatment. Therefore, there was no need for him to consider whether HUD’s interpretation of the statute was reasonable – he had already determined that HUD’s interpretation was flatly wrong. The disparate impact rule exceeds HUD’s authority and therefore violates the APA. (Mem. Op. at 16-17)
The full text of the opinion is available here: https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2013cv0966-45
Kirsanow Sends Letter to President Obama Regarding Executive Amnesty, ID Cards
This afternoon, Commissioner Kirsanow sent a letter to President Obama and the Congressional Black Caucus. In the letter, Commissioner Kirsanow expresses his concern about a DHS solicitation for up to 34 million identification cards in the event that immigration reform occurs. Given the remote possibility that any sort of immigration reform would pass Congress, this solicitation likely contemplates an executive amnesty following the November elections. The full letter is available here.
Commissioner Kirsanow Sends Letter to Houston Mayor Regarding Religious Liberty
This morning, Commissioner Peter Kirsanow of the U.S. Commission on Civil Rights sent a letter to Houston Mayor Annise Parker. Commissioner Kirsanow expressed his concern regarding the city’s decision to subpoena numerous documents from area pastors regarding their views on, among other things, the city’s equal rights ordinance, civil rights, homosexuality, and gender identity. Commissioner Kirsanow wrote:
A subpoena that requires a pastor to turn over an e-mail to his neighbor about the details of the Equal Rights Ordinance, or a draft book chapter on the Bible and homosexuality that discusses the Equal Rights Ordinance, is clearly overbroad. Yet both of these documents come within the ambit of the discovery request in the subpoena. Both the e-mail and the draft come within the definition of “documents,” and the subject matter would come within at least one item on the lengthy list.
No government entity should be in the business of requiring private citizens to turn over private communications about the issues of the day.Obviously this discovery request would tend to have a chilling effect on political speech, which is the speech subject to the greatest First Amendment protection. When he is out of the pulpit, a pastor has the same free speech rights as any other person. “[P]olitical speech must prevail against laws that would suppress it, whether by design or inadvertence.” Still more must political speech prevail against discovery requests designed to discourage pastors from publicly opposing the City’s preferred policies.
Furthermore, in this instance it is impossible to disentangle the religious aspects of much of the speech from the political aspects. Discovery request 1.m. requests any documents related to the Equal Rights Ordinance and “the topics of equal rights, civil rights, homosexuality, or gender identity”. Given that the recipients of these subpoenas are pastors, it is almost inevitable that their views on homosexuality and gender identity are informed by their faith, if not almost entirely rooted in their faith. Indeed, the views of many people on homosexuality and gender identity are rooted in their ultimate commitments. A person’s religious views on civil rights, equal rights, homosexuality, and gender identity have nothing to do with whether there are enough valid signatures to place a referendum on the ballot. Neither does the pastors’ understanding of the ordinance or petition have anything to do with the number of valid signatures. This discovery request impermissibly probes the religious beliefs of private citizens simply because they supported a political effort. [citations omitted]
The entire letter is available here.
Another EEOC loss: Second Circuit affirms dismissal of Equal Pay Act claim
Regular readers know that the EEOC has brought a number of lawsuits where evidence of discrimination is shaky, and that the courts have responded by ruling against them. The EEOC received more bad news today. In an opinion authored by Judge Debra Ann Livingston, the Second Circuit has dealt the EEOC a loss in EEOC v. Port Authority of New York and New Jersey. The panel, comprised of Judges Livingston and Droney and Judge Pamela K. Chen (E.D.N.Y., sitting by designation) affirmed the district court’s dismissal of the EEOC’s complaint. The district court had determined, and the Second Circuit agreed, that the EEOC had failed to proffer sufficient evidence that pay differentials between male and female attorneys employed by the Port Authority of New York and New Jersey violated the Equal Pay Act. Judge Livingston writes:
To support its claim that the attorneys performed “equal work,” the EEOC pled broad facts concerning the attorneys’ jobs (such as that the attorneys all have “the same professional degree,” work “under time pressures and deadlines,” and utilize both “analytical” and “legal” skills) that are generalizable to virtually all practicing attorneys. The EEOC did not, however, plead any facts particular to the attorneys’ actual job duties. (Opinion at 2-3)
Judge Livingston notes that the specific duties of each position are vital to evaluating a claim under the Equal Pay Act because “Congress rejected statutory language encompassing ‘comparable work’ to instead mandate equal pay for ‘equal work on jobs the performance of which requires equal skill, effort, and which are performed under similar working conditions.”29 U.S.C. § 206(D)(1); see Brennan v. City Stores, Inc., 479 F.235, 238 (5th Cir. 1975) (quoting 109 Cong. Rec. 9197-98 (1963)) (Opinion at p. 17). If an Equal Pay Act claim fails to provide the specifics of the jobs in question, it is impossible to determine if the jobs are “substantially equal”. And in this case, the EEOC failed to provide such specifics.
[T]he EEOC alleged that the Port Authority required all of its nonsupervisory attorneys to have similar “experience, training, education, or ability,” bar admission, and the capacity to call upon “problem‐solving and analytical skills” as well as “professional judgment.” However, such bland abstractions –untethered from allegations regarding Port Authority attorneys’ actual job duties – say nothing about whether the attorneys were required to perform “substantially equal” work. Thus, the EEOC’s complaint provides no guidance as to whether the attorneys handled complex commercial matters or minor slip‐and‐falls, negotiated sophisticated lease and financing arrangements or responded to employee complaints, conducted research for briefs or drafted multimillion‐dollar contracts. The EEOC asserts that such allegations are unnecessary because “all lawyers perform the same or similar function(s)” and that “most legal jobs involve the same ‘skill.’” Appellant’s Br. at 29. But accepting such a sweeping generalization as adequate to state a claim under the EPA might permit lawsuits against any law firm – or, conceivably, any type of employer – that does not employ a lockstep pay model. Without more, these facts cannot be read to raise the EEOC’s “substantially equal” work claim “above the speculative level.” See Twombly, 550 U.S. at 555.
Nor does the EEOC’s table purporting to compare claimants and comparators bolster its claim. As the district court noted, the comparisons drawn appear superficially random, and rightly so: as the EEOC acknowledged, the table simply juxtaposes claimants and comparators whose “combined” bar admission and service dates are separated by no “more than ten years” – a full decade of difference in experience. (Opinion at 23-24)
You can read the entire opinion here.
Resolution encouraging application of “Rooney Rule” to all hiring
Over at National Review Online, NACRP friends Roger Clegg and Hans von Spakovsky report on an ill-advised Senate resolution proposed by five Republicans and one Democrat:
S. Res. 511 “encourages corporate, academic, and social entities, regardless of size or field of operation” to adopt some version of the National Football League’s “Rooney Rule.” That rule, named after Daniel Rooney, the owner of the Pittsburgh Steelers, was implemented in 2003. It requires every NFL team with a coach or general-manager opening to interview at least one minority candidate.
The senate resolution also endorses a proposal by Black Entertainment Television founder Robert L. Johnson to broaden this rule by encouraging companies to interview a minimum of two minority candidates for managerial openings at the director level and above, and to interview two qualified minority businesses before approving a vendor contract.
Read the whole thing here.
Kirsanow Letter Regarding Proposed Illegal Immigration Executive Order
Yesterday, Commissioner Kirsanow sent a letter to President Obama counseling against issuing an executive order granting legal status to illegal immigrants. As he has in the past, Commissioner Kirsanow warned of the deleterious effects such grant of legal status would have on the employment prospects of low-skilled American workers, especially low-skilled black Americans and teens. He writes:
Illegal immigration has a disparate impact on African-American men because these men are disproportionately represented in the low-skilled labor force. The Census Bureau released a new report on educational attainment after the Commission issued its report. This report, released in February 2012, found that 50.9 percent of native-born blacks had not continued their education beyond high school. The same report found that 75.5 percent of foreign-born Hispanics had not been educated beyond high school, although it does not disaggregate foreign-born Hispanics who are legal immigrants from those who are illegal immigrants.However, Professor Briggs estimated that illegal immigrants or former illegal immigrants who received amnesty constitute a third to over a half of the total foreign-born population. Foreign-born Hispanics who are in the United States illegally are disproportionately male. African-Americans who have not pursued education beyond high school are also disproportionately male. These poor educational attainment levels usually relegate both African-American men and illegal immigrant men to the same low-skilled labor market, where they must compete against each other for work.
Your proposed executive order will also have a negative effect on young African-Americans at the outset of their working lives. Young, low-skilled workers are facing enormous difficulties in this economy. A recent study from the Brookings Institution found, “Only about half of high school graduates not enrolled in post-secondary education and less than 30 percent of high school dropouts worked in a given month in 2011.” Black teens had the highest labor underutilization rate (defined as encompassing the unemployed, the unemployed who desire employment but are not actively looking, and the underemployed) of any ethnic group – 60 percent. Furthermore, “Several variables were negatively associated with teen employment rates in a given metropolitan area. … [including] the presence of immigrants with less than a bachelor’s degree.” This will affect young people for the rest of their lives, as those who work during their teenage years have more successful careers than those who did not. [citations omitted]
Read the whole thing here: Letter to President Obama Regarding Proposed Illegal Immigration Executive Order
USCCR Briefing on DOJ/ED Sexual Harassment Guidance
Alison has written extensively on joint guidance regarding sexual harassment that was issued by DOJ and the Department of Education. Tomorrow the U.S. Commission on Civil Rights will hold a briefing regarding the guidance. Topics to be addressed include the government’s rationale for issuing the guidance, the prevalence of sexual harassment and sexual assault, and potential First Amendment and due process concerns. Panelists include government representatives, Greg Lukianoff of FIRE, Ken Marcus of the Brandeis Center, and Eugene Volokh of the Brandeis Center. The briefing starts at 9:00 at the Commission’s office at 1331 Pennsylvania Avenue NW, Suite 1150, Washington, DC. The agenda, including the full list of speakers, is here.
Department of Education: Racial bean counters extraordinaire
Regular readers of this blog are well aware of the Department of Education’s penchant for racial bean counting. Today’s Federal Register includes a notice from the Department that continues the Department’s proud tradition. The notice is entitled “Application for New Awards; Center for the Study of Distance Education and Technological Advancement.” At first the notice seems like hundreds of other notices – “study and develop best practices for online education,” “collect data on outcomes,” and so on and so forth.
However, in Section III, “Eligibility requirements,” the notice suddenly becomes interesting. The first two prongs of the eligibility requirements are unremarkable. The third prong, though, requires that an eligible institution, “has minority student enrollment of not less than 15 percent.” The notice elaborates upon this requirement:
For purposes of this competition we are adopting the definition of “minority student” in 34 CFR 607.7 as a student who is Alaskan Native, American Indian, Asian-American, Black (African-American), Hispanic American, Native Hawaiian, or Pacific Islander.
To qualify as an eligible IHE for purposes of this competition, an IHE must have a minority student enrollment of no less than 15 percent. To determine the applicant’s minority enrollment percentage, use the following guidelines.
To qualify as an eligible IHE for this program, a postsecondary institution’s enrollment of minority students must represent at least 15% of its total enrollment (including graduate and undergraduate, full-time and part-time students, based on the most recent academic year for which IPEDS data are available). The Department will screen the applications to verify an IHE’s minority enrollment eligibility based on the criterion.
In our increasingly racially diverse society, there may not be an institution of higher education anywhere that has minority student enrollment of less than 15 percent. That is not the point. This is a crude form of racial bean counting. The Supreme Court has repeatedly stated that racial classifications are constitutionally suspect and subject to strict scrutiny. Yet nowhere in the notice does the Department of Education proffer any reason why it is vital to the success of this program that an institution’s student body be no more than 85% white. Any institutions that accept federal money are already subject to federal nondiscrimination provisions, so it is unlikely that any institution whose student body is 85% white is discriminating on the basis of race. The Department does not claim that it is trying to stamp out overt discrimination.
Nor does the Department claim that these requirements are necessary to achieve diversity. I am skeptical of the diversity rationale in education, but this notice does not even make a half-hearted effort to offer the diversity rationale (or any rationale). Although there still would be no valid reason for requiring certain racial demographics in order for an institution to be eligible, there would at least be some symmetry if the rule required something like, “In the interests of diversity, a single ethnic group may account for no more than 85% of the student body.” But that is not what the notice says.
Therefore, it seems unlikely that any compelling reason for the race-based requirements can be offered, much less that the Department’s approach is narrowly tailored. Are black and Hispanic students innately any less able to engage in distance learning than are white students? Wouldn’t socioeconomic status have more of an impact, regardless of the person’s race?
Assume that there is an institution that would like to apply for this grant but that has a student body that is 90% white. Perhaps this is a small institution in rural Wyoming that primarily serves rural Wyoming residents. A grant to study effective distance learning strategies would likely be of great value to this institution and its students. Yet the Department of Education offers no option for institutions like our hypothetical Wyoming institution to demonstrate why they are the best applicant, even if the institution also had to demonstrate that the racial demographics of their student body are due to happenstance (i.e., almost all our students are from rural Wyoming, and 95% of people who live in rural Wyoming are white). Based on this notice, if your institution has the wrong racial composition, then you are out of luck.
This notice is blatantly racially discriminatory because one racial group – in this case, whites – is singled out for less-favorable treatment than every other racial group. It provides that at least 15% of the students must be a race other than white. One might think that this is intended to ensure that the grants go to racially diverse schools. But what of historically black colleges and universities? Even if their student enrollment is 95% black, they are still eligible for this grant. An institution located near a reservation that consequently has 87% Native American enrollment would also be eligible. Whites are the only racial group that disqualify an institution if there are too many of them in the student body.
Lastly, the Department is not accepting comments on this grant competition. People who object to racial classifications and any institutions that would want to apply for the grant but have the wrong demographic makeup do not even have the opportunity to express their objections.
The notice is available here.
“The Trouble with Campus Rape Tribunals”
At Public Discourse, Robert Carle discusses the pitfalls of the Departments of Education and Justice’s preferred approach to on-campus allegations of sexual assault. Read the whole thing here.