A “Human Right” to Discriminate in Government Hiring?

The Vice Chairman of the Prince William County Human Rights Commission, Carlos Labiosa, is investigating the local school board’s decision to drop affirmative-action hiring preferences and replace them with a principle of non-discrimination. Apparently, he believes that discrimination against whites or males is a “human right.”

He’s wrong. No one has a “right” to have the government discriminate in their favor based on their race or gender.

Federal law permits affirmative action under limited circumstances, but it doesn’t require it, as the federal appeals court observed in Coalition for Economic Equity v. Wilson, 122 F.3d 692 (9th Cir. 1997). Thus, it’s perfectly legal and constitutional to repeal affirmative action. (The Coalition for Economic Equity case upheld California voters’ ban on affirmative action in state employment, contracting, and education against a challenge claiming that affirmative action is protected by the Constitution and Title VII of the Civil Rights Act).

Moreover, government officials who implement affirmative-action programs can be sued individually for damages if the affirmative-action program is clearly illegal, under Alexander v. Estepp, 95 F.3d 312 (4th Cir. 1996).

A newspaper article says that the Supreme Court upheld the use of race in hiring in a 2003 decision. Actually, it upheld a university’s voluntary use of race in college admissions, not hiring. The Supreme Court made clear that using race in hiring is generally illegal in Wygant v. Jackson Board of Education (1986), which overturned race-based layoffs, and it limited the use of race in student assignment in Parents Involved in Community Schools v. Seattle School District No. 1 (2007), a case in which CEI filed an amicus brief that is discussed here.

Affirmative action can be quite costly to businesses and taxpayers, as we explain here and here.

(The mandatory diversity training promoted by affirmative-action advocates can also be quite costly, as we explained earlier here and here, resulting in costly lawsuits by both white and minority employees, and spawning racial and sexual conflict in the workplace).