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July 21, 2006 : April
25, 2006 : February 24, 2006
: August 3, 2005
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The Federalist Society's Civil Rights Practice
Group and Georgetown Student Chapter presented a panel on "Mandated
Racial Admissions in Hiring at Law Schools? An Examination of
the Newly Proposed ABA Standard." The event was held on
March 20, 2006 and featured: Prof. David Bernstein, George Mason
University School of Law; Roger Clegg, Center for Equal Opportunity;
Prof. Peter Edelman, Georgetown Law Center; James Freeman, The
Advancement Project; and Prof. Tom Morgan, George Washington
University Law School. Please click HERE
(PDF) to read a transcript of the event.
- FIFTH CIRCUIT OPINION FACILITATES CHALLENGES TO RACIAL PREFERENCES
by Roger Clegg*
Practitioners challenging racially discriminatory affirmative-action
plans are helped by a recent Fifth Circuit opinion. There
are three important parts to Dean v. City of Shreveport, No. 04-31163
(5th Cir. Jan. 25, 2006), which involved a challenge to the affirmative-action
employment provisions for firefighters in a 1980 consent decree.
First, it holds that, as an Equal Protection Clause matter, a
state actor using racial preferences in employment must periodically
hit the refresh button on its claimed remedial predicate.
Thus, while there might have been sufficient evidence of anti-black
discrimination for such preferences to have a compelling
justification in 1980, it does not follow that that evidence justifies
continued use of preferences more than two decades later.
Rather, there must be more recent evidence of discrimination.
This is an extremely important and valuable principle for those
who would like to end the quotas frequently required by consent
decrees. The opinion also discusses how a court must ensure
that the updated remedial predicate is based on reliable
statistical data, not specious disparities; likewise, the
opinion describes the necessary narrow tailoring requirements,
including Necessity of the Particular Relief and Efficacy
of Alternative Remedies ("On remand, the City must
show that race-neutral or less-intrusive remedies would have been
insufficient), Flexibility and Duration (noting
that durations of remedies in this case are breathtakingly
long), Relationship Between the Numerical Goal and
the Relevant Labor Market, and Impact of Relief on
Third Parties.
Second, the opinion holds that there is an absolute, categorical
Title VII ban on racially differentiated cutoff scores (even if
they might be defended as consistent with the Equal Protection
Clause), namely 42 U.S.C. 2000e-2(l), which was added to the statute
when it was amended in 1991. See also Nelson Lund, The
Law of Affirmative Action in and after the Civil Rights Act of
1991: Congress Invites Judicial Reform, 6 Geo. Mason
L. Rev. 87 (1997).
And, third, it holds that Louisianas state constitution
likewise contains an absolute, categorical ban--on all racial
discrimination, whether or not allowed by federal constitutional
or statutory law.
*Roger Clegg is president and general counsel of the Center
for Equal Opportunity in Sterling, Virginia.
- The Federalist Society's Civil Rights Law Practice Group hosted
a conference on "Solomon Amendment: Can Congress Condition
Benefits to Colleges and Universities on Their Willingness to
Allow Military Recruiters on Campus?" The panel was held
in Washington, D.C. on October 20, 2005 and featured: Shannen
Coffin, Steptoe & Johnson; Prof. David Cole, Georgetown Law
Center; Professor Chai Feldblum, Georgetown Law Center; Carter
Phillips, Sidley Austin Brown & Wood; Gerald Walpin, KMZ Rosenman;
and Prof. John Eastman, Chapman University School of Law. Please
click HERE
to read the transcript of this panel. (PDF)
- THE CONSTITUTION AND THE BOY SCOUTS
The Federalist Society's Civil Rights Practice Group hosted a panel
discussion on "The
Constitution and the Boy Scouts: Equal Access to Government Land
and the First Amendment." The panel was held in San Diego, CA
on May 18, 2005 and featured: Prof. Alan Brownstein, University
of California Davis School of Law; George Davidson, Hughes Hubbard
& Reed LLP; Prof. John Eastman, Chapman University School of Law;
Eric Isaacson, Lerach Coughlin Stoia Celler Rudman & Robbins LLP;
Dean Kenneth Starr, Pepperdine University School of Law and Dean
Daniel Rodriguez, University of San Diego Law School, served as
moderator. Please click HERE
to read the transcript of this panel. (PDF)
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