Limits of private affirmative action

Sat Nov 18 15:05:03 PST 2006

Im response to Lynn:  As far as I know, there is not a single HBCU that
discriminates in hiring, students, or in the Bob Jones case, by telling
students who they can date.  That makes the UNCF quite different from
Bob Jones.  Harvard by the way, has (or at least used to have) many
scholarships for people of certain faitths (such as scholarship for the
son of the congregational minister in X town. Are you suggesting that
they are illegal?

Quoting Lynne Henderson <hendersl at ix.netcom.com>:

> I've used the privately funded/university- administered scholarship
> hypothetical  on Con Law II exams.  It comes down to "state action"
> and all its incoherence.  The government I suppose could deny the
> United Negro College Fund tax breaks and 503(c) status for charitable
> contributions (cf *Bob Jones* university)  But southern Illinois and
> other colleges and universities, under threats of lawsuits, *have*
> abandoned race-identified scholarship programs recently.  And there's
> a suit in NY brought against the Medgar Evers program by another
> African American group--just don't have the information handy.
>
> The Title VII question is an interesting one.  It gets you back to
> what the courts allowed pre-*Ward's Cove*  (Civil rights Act of 1991)
> and the disagreements in *Johnson v. Transportation Agency.*  The
> Court has had a trend of trying to make Title VII = to Equal
> Protection, just as it had done with Title VI in the education
> context. That has yet to have happened, however, and Congress
> repudiated *Ward's Cove* (to some extent)  But there are other list
> members far more expert on the cases since the Civil rights Act of
> 1991 who might know what is going on.
>
>   If affirmative action for diversity/competition in the global
> market/business sense is justified because of *Grutter* and *Gratz,*
> then arguably a  narrowly-tailored program would pass muster under
> the EP and "business necessity" tests.  If *Hibbs* is any guide, then
> Congress could go slightly farther than the Court would, unless the
> Court decides that any racial  consideration outside of remedying
> past intentional discrimination fails strict scrutiny (vs. the
> intermediate scrutiny applicable to FMLA)  Similarly, *UAW v. Johnson
> Controls* upheld the Pregnancy Discrimination Act of 1978, even
> though the Court had held that discrimination in employment on the
> basis of pregnancy violates neither Title VII (*Gilbert*) nor the EP
> clause (*Geduldig*)
>
> Prof. Lynne Henderson
> Boyd School of Law--UNLV
>
> On Nov 18, 2006, at 6:53 AM, Steven Jamar wrote:
>
>> Assuming that the Colbertian race-blindness theory wins the day and
>> even the anemic version of affirmative action in the Michigan case
>> falls (can take race into account), can private entities use
>> race-conscious affirmative action in employment?  If one interprets
>> Title VII that way, and Congress were to pass an amendment to Title
>> VII that excepted affirmative action in favor of those groups
>> historically or economically or statistically disadvantaged, would
>> that be unconstitutional?
>>
>> Can a state school administer privately-funded scholarships for
>> African Americans?  Can the state school accept students who are
>> funded by privately administered scholarships for African
>> Americans?  Is the United Negro College Fund illegal?
>>
>> Where is the constitutional line for statutes that would reach such
>> private conduct?
>>
>> Rick, are you or is any other white person injured by the United
>> Negro College Fund?  Isn't the psychological effect the same whether
>> it is a state school or a private school or a private funding of
>> students for a school?
>>
>> A mind IS a terrible thing to waste.
>>
>> Steve
>>
>> -- 
>> Prof. Steven D. Jamar                               vox: 
202-806-8017
>> Howard University School of Law                     fax: 
202-806-8567
>> 2900 Van Ness Street NW                  
mailto:stevenjamar at gmail.com
>> Washington, DC  20008                           http://iipsj.com/SDJ/
>>
>> "If we are to receive full service from government, the universities
>> must give us trained [people].  That means a constant reorientation
>> of university instruction and research not for the mere purpose of
>> increasing technical proficiency but for the purpose of keeping
>> abreast with social and economic change. . . .  Government is no
>> better than its [people]."
>>
>> William O. Douglas
>>
>>
>>
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Douglas Laycock
Yale Kamisar Collegiate Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI  48109-1215
  734-647-9713

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