Is Race Discrimination Legal, Or Not? [with comment by Paul]

We live in a world in which race discrimination is ubiquitous. Universities, government agencies and all major employers systematically discriminate in favor of some races, and against others, under the banner of “affirmative action.” This has been going on for 50 years. And yet, the 14th Amendment’s guarantee of equal protection has been applied to ban race discrimination by public entities in a number of contexts. Similarly, the Civil Rights Act purports to bar race discrimination in employment and public accommodations. Such discrimination in employment is nevertheless pretty much universal; see, e.g., United Airlines’ recent declaration of its intent to discriminate for just one of many thousands of instances. I have no idea what the operative legal principles are.

Here is an example from contemporary America: race discrimination in the dissemination of covid vaccines. This email was sent out by the University of Minnesota Health Services in collaboration with the Fairview health care system. For legal purposes, I take it this is a public enterprise to which the 14th Amendment applies. Click to enlarge:

This is the relevant part:

So the University of Minnesota is engaging in naked racial discrimination. Not in some trivial matter, but in the dissemination of a vaccine that is assumed to be lifesaving. If you are white–or Indian- or Iranian- or Pakistani- or Japanese-American, all of which groups have higher incomes than whites, and I think longer life expectancies–you have to have cancer, hemophilia or the like to be eligible. But if you are a member of a favored race–black, Hispanic (which of course is not a race, many Hispanics are white), American Indian, Southeast Asian–you go to the front of the line.

Am I the only one who thinks this is unAmerican? Or is that sentiment a relic of a long-gone, better time? Race discrimination seems to be so deeply embedded in our society, so widely accepted, that it is hard to see how we can get rid of it.

As noted above, I do not understand the legal framework within which race discrimination has become both universally condemned and, in practice, universally accepted. Someone suggested years ago that we should re-enact the exact language of the 14th Amendment, and add the words: “And this time, we really mean it!” That, basically, is the position of conservatives. But we are a forlorn minority.

Maybe consistent legal principles are at work here–not good ones, but consistent–and I am too dense to understand them. I call on Paul for help. Many of our readers may not know that Paul was, early in his career, a star appellate lawyer for the federal Equal Employment Opportunity Commission. Thereafter he devoted decades to litigating discrimination cases of various kinds. So maybe he can explain: Which is it? Is racial discrimination forbidden to public bodies and, in some contexts, to private organizations? Or is it not only permitted, but, in polite society, mandatory?

PAUL RESPONDS: In employment cases, discrimination in favor of certain minority groups is increasingly common, but rarely legal. It is lawful to grant racial preferences as a temporary measure to overcome manifest imbalances in traditionally segregated jobs, a situation that rarely obtains these days. I discussed this briefly here and here.

Taxman v. Board of Education of Township of Piscataway, a Third Circuit case from 1996, looked like it would become the Supreme Court’s leading case on the subject. The issue there was whether the township’s school board violated Title VII when it made race a factor in selecting which of two equally qualified teachers to lay off. The Third Circuit found that this action was unlawful.

The board petitioned for cert, and the Supreme Court granted the petition. But, in a brilliant strategic move, advocates of racial preferences, fearing a broad adverse ruling (from a court considerably less conservative than the current one) induced an out-of-court resolution by paying more than two-thirds of a $433,500 settlement to Taxman.

Under the Constitution, racial preferences are unlawful unless they are necessary to serve a compelling state interest and are narrowly tailored to meet that interest. The nature of the compelling interest asserted will vary depending on the type of preferences at issue. In college admissions cases, the interest is “diversity.”

The Supreme Court has accepted this interest as compelling, but nowadays the racial preferences granted by elite schools aren’t at all narrowly tailored. Princeton, for example, can obtain the benefits of a diverse student body without making white students just one-third of the non-international applicants it admits.

In the case of a state rule giving blacks priority for vaccinations, depending on the facts, the interest asserted as compelling might be severe spread of the virus in minority communities coupled with low vaccination rates there. However, this interest wouldn’t really justify selection based on race, as opposed to neighborhood of residence. Thus, it seems to me that the racial preference John writes about might well fail the “narrowly tailored” test, even if a compelling interest could be demonstrated.

The outcome of litigation would probably depend on the political affiliation and ideology of the judge (as is so often the case in these matters). In this regard, I note that the Eighth Circuit, which covers Minnesota, is arguably the most conservative federal judicial circuit in America. Only one of its judges, including senior judges, was appointed by a Democrat.

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