Deep Dive Episode 233 – Litigation Update: CFER v. Alameda & Raak Law v. Gast

[Music and Narration]

 

Introduction:  Welcome to the Regulatory Transparency Project’s Fourth Branch podcast series. All expressions of opinion are those of the speaker.

 

On August 23, 2022, The Federalist Society’s Regulatory Transparency Project hosted a virtual event titled “Litigation Update: Californians for Equal Rights Foundation v. Alameda County and Raak Law v. Gast.” The following is the audio from that event.

 

Chayila Kleist:  Hello, and welcome to this Regulatory Transparency Project webinar call. My name is Chayila Kleist, and I’m an Assistant Director at the Regulatory Transparency Project here at The Federalist Society. Today, August 23, 2022, we are excited to host a Litigation Update on two pending cases—CFER v. Alameda County and Raak Law v. Gast. We’re delighted to host both our main speaker today, Wen Fa, a senior attorney with the Pacific Legal Foundation and a litigating attorney in both cases being covered today, and our moderator, Dan Morenoff, the Executive Director of the American Civil Rights Project. 

 

As always, please note that all expressions of opinion are those of the experts on today’s call as The Federalist Society takes no position on particular legal or public policy issues. Lastly, for the panel if you have any questions, please submit them through the question-and-answer feature so that our speakers will have access to them for when we get to that portion of the webinar. With that, thank you for being with us today. Mr. Morenoff, the floor is yours.

 

Dan Morenoff:  Thank you, Chayila. I appreciate it. Well, I’m excited to be here and glad that I get to play a role in Wen updating us on what I think are two really interesting and important cases. So here’s my thought. We’re going to do this one at a time starting first with Raak Law v. Gast. Tell me about it. What’s the case? What’s the situation? What are they doing?

 

Wen Fa:  Yeah. Thank you so much, Dan. And thanks again to The Federalist Society for having me on this presentation. One thing that I’d just like to start off with is that one of the unique and really interesting things about this presentation is that, in a lot of these talks, I talk about one important case, but here I’m talking about two important cases. So I just wanted to start off by maybe highlighting some themes that tie both of these cases together. 

 

Dan Morenoff:  Please.

 

Wen Fa:  Both these cases involve quotas. One involves a gender-based quota, and the other involves race-based quotas. And there are a few different concepts, and they’re kind of related. But I think they really highlight the contrasts between what I view as the pro-liberty conception to equality before the law and the equity-based conception to equality before the law. So one —

 

Dan Morenoff:  Absolutely. And I know it’s a pet peeve of mine that those of us in the equality-friendly side of the world have to deal with other activists who’ve decided that they get to steal the word equity. We don’t need to take time right now to discuss how wrong that is. I just want to flag it isn’t equity either. I know that’s how they use it, but that’s a thousand-year-old word and term. And it doesn’t mean what they’re saying. Anyway, sorry to interrupt. Go ahead, please.

 

Wen Fa:  Sure. So let me call it the progressive vision then. So one of the contrasts is between this whole notion of equality of outcomes that, I think, are often advocated by those who believe in a progressive vision of equality before the law and equality of rights. So on one side you have people saying that we need people. We need broad terms, outcomes-based equality—for example, income and things like that. Whereas on the other hand, we think that the Constitution properly understood, the Fourteenth Amendment, protects everybody—everybody’s individual rights. Equality of rights, everybody is entitled to individual rights regardless of race or gender. So that’s one distinction. 

 

Another distinction is kind of related to what I said earlier, that’s distinction between individual rights versus group representation. And this really comes up in play when you talk about these gender-based quotas because this sort of fixation on group representation—as I think both of these cases will highlight—really subvert individual opportunity and an individual’s ability to advance, to empower himself or herself based on his or her abilities, accomplishments, aspirations. And I think that’s what makes both of these cases, even though they come from different places in the United States and involve different bodies or different things, they all share that same related concept of individualism and the vision of the Constitution as protecting the equality of rights. 

 

So let me talk first about the Raak Law v. Gast case that you mentioned, Dan, about gender quotas on Iowa’s Judicial Nominating Commission. So for those of you watching at home or in your office, first question that might pop up in your mind is, “What the heck is a Judicial Nominating Commission?” Well, to backup just a little bit, different states have different ways by which they select state court judges. Just a few examples, in some states the governor appoints judges and justices to state courts. In other states, you might have the people elect judges and justices to the state courts. 

 

There’s another process relevant here called the merit-based selection process. And that involves a handful of commissioners who actually interview these judicial candidates. And out of the interviews, they select — usually they give a list of name to the governor to pick from that list. And that’s exactly what the situation is in Iowa. They have a mixed merit-based system mixed with governor appointments so that you have 17 commissioners on Iowa’s Judicial Nominating Commission. Nine are appointed; eight are elected. They deliberate. They interview these candidates. They deliberate about these candidates. And they choose a list of candidates that the governor buy state law must pick from for the next justice on the Iowa Supreme Court or the next judge on the Iowa Court of Appeals. 

 

The irrelevant portion here is the elected seats are actually quotas on both, but our clients want to be elected members of the Commission. And there are eight elected seats. Iowa has four congressional districts, and it has this very, very strict gender quota that requires four men and four women on the Judicial Nominating Commission—one man and one woman from each of Iowa’s four congressional districts. What’s more, the elections are actually staggered. They serve for six-year terms, but they are elected every two years. So you have elections in 2021, 2023, 2025, and so forth, and you have different seats coming open each of those years. 

 

And because there are staggered elections, depending on where you live in Iowa, you can only run if you’re a man in some elections in some places, and you can only run if you’re a woman in other places. So it’s very ironic actually that in a system that is designed for the merit selection of judges, when you’re talking about people who serve on the Commission, merit has little to do with it. It’s based on gender. They’re excluding half of Iowa’s population from even being considered based on nothing more than their gender. 

 

Dan Morenoff:  In every one of those seats. Let me pause you for a just one moment here. Because I know when I first heard of this, one of the things that came to my mind was that I know that there are a number of states in the federal systems where senators, when they vet potential candidates for district court judgeships, Court of Appeals seats — who they will recommend to the president for appointment I guess is how we should characterize that so that it has some consistency with the advice and consent requirements of the Constitution rather than the fact that really we just have senators pick who these people are going to be. In a number of states, I know the senators have set up commissions where they appoint people to advise them and go through all of the applicants so that their staff only has to look at the couple best people, and they don’t’ have to invest as much of their own staff time and resources in the process. This sounds like that, but I’m getting the feeling that it’s not. Am I right about that? How official is this commission that you’re talking about?

 

Wen Fa:  This is a very formal commission. It’s actually contained — it’s actually mentioned in the Iowa Constitution. The Iowa Constitution sets forth this commission, how many members there can be, and also how — the qualifications—not the gender-based qualifications—but some other qualifications for these commissioners. For example, they can’t hold an office for profit, a state office for profit, and they can’t have previously served on the same commission before. So it’s a very official commission.

 

Dan Morenoff:  So it’s actually government. The officials that we’re talking about, whether they’re appointed or elected, are government officers of the state of Iowa.

 

Wen Fa:  Yes. So they’re members on a public commission. And just the talk about some of our clients, our main client, Rachel Raak Law, she’s precluded from running in her district. But I would venture to say that she’s more qualified than any other candidate who would be elected — who would be up for election, this upcoming election in January 2023, because she has actually previously served for six years on the District Nominating Commission. So what’s the District Nominating Commission? It’s also a public commission. And the only difference is the District Nominating Commissioners, they interview and select judges for Iowa’s district courts, while the Judicial Nominating Commission selects, interviews, and selects judges for Iowa’s appellate courts. So she’s extremely qualified. And this is just another example of how quotas, out of this fixation on proportional group representation, they deprive well qualified individuals of opportunity.

 

Dan Morenoff:  Again, I’m just hung up on this for just one second. So is a government — this is a government position. I know you’d said that the Constitution established some of the relevant qualifications for office, but not this one. Where does this requirement come into play? Where does it come from?

 

Wen Fa:  This requirement comes from Iowa state law. It’s actually, we think about a lot of these programs, some very new programs, and there are certainly very new programs, a discriminatory farm loan forgiveness provisions that we’ve challenged here at Pacific Legal and that the Biden administration repealed just recently with the so-called Inflation Reduction Act. But a lot of these programs, quotas, have been around for quite a while. So this program actually came, it was the idea of specific senators in the Iowa — and specific legislatures in the Iowa Legislature in the 1980s. And what they wanted to do was ensure more female representation on the state Judicial Nominating Commission. 

 

But it’s very ironic. Because out of this fixation on ensuring group representation, they subvert opportunity for everybody, including women, including Miss Rachel Raak Law, who is herself precluded from running for a position that she’s highly qualified for just because she is a woman. So it’s this whole notion that two wrongs make a right. It’s entirely antithetical to the Constitution’s guarantee of equal protection, guarantee of equality of rights. It still affects individuals on the ground, as our clients’ stories show. It affects individuals on the ground regardless of any sort of holistic consideration of group representation.

 

Dan Morenoff:  Sure. Now, this was going to be my next question. I get and I’m hearing from you what’s morally wrong with this. As a legal matter, what’s the challenge? How are you saying that this is violative of presumably federally protected right?

 

Wen Fa:  Yeah. So we followed a challenge in May under the Equal Protection Clause of the Fourteenth Amendment. Many people know the Equal Protection Clause is protecting individuals against race discrimination, but just as much it protects individuals against gender discrimination. And gender discrimination under the Equal Protection Clause is subject to what’s called an intermediate scrutiny, which requires a government to show an important governmental interest and also a substantial relationship between the law and that interest. 

 

So the important interest that the government has said here is remedying past discrimination. But they really provided not one iota in terms of evidence substantiating that there has been past discrimination in the election of commissioners to the state Judicial Nominating Commission. Even more to the point, they can’t show a substantial relation because, as we all know from the race-based cases, quotas—especially quotas like this one that are rigid, broad, and perpetual—the Supreme Court has called that patently unconstitutional on many occasions. So we think we have a very, very strong case here.

 

Dan Morenoff:  So let me push back or push further on a couple of those pieces, right? In terms of the — I understand what you’re saying the interest is, and I understand that there might be a difficulty in the framing of it. If their answer has been to say right, but there’s a history of discrimination. If this statute has been on the books for 30 years—and it sounds like it has—it’s my memory from these cases that usually when governments are trying to justify a program, one, it has to sunset—this one clearly doesn’t—and two, that in order to justify it, they have to be able to point at recent discrimination that the program is fixing. So entirely aside from whether there was any evidence when this was passed in 1980 –I don’t know if you actually said what particular year—in the 1980s, is there any evidence at all that there is an ongoing intent to discriminate in the electorate?

 

Wen Fa:  No, absolutely not. So they haven’t even produced evidence of previous discrimination from the 1980s. There certainly isn’t any evidence of continuing discrimination in the current election of commissioners. And the scope also has to — you mentioned a great point about the time limitations that need to be in place. The scope also needs to be tailored to past discrimination. Here, the scope is a fixed number of male and female commissioners. So they would have to show that perhaps absent any discrimination—they haven’t shown any discrimination at all—but absent the discrimination, that Iowans won’t always elect commissioners with this four-to-four balance—one each in every congressional district. I think that’s just absurd on its face. 

 

And what’s more, there’s another argument that I didn’t mention that I feel like we would be remiss not to mention. One other argument is that this isn’t even gender discrimination in the first place because men and women are given similar opportunities. They’re both allowed to have four seats in the commission. That is just exceedingly weak. It really just completely ignores the principle that the Constitution requires government to treat individuals as individuals and not as members of their group. Sure, this law requires an equal number of male and female commissioners, but they do that by limiting people individually from running because of their gender. So the only evidence of gender discrimination we have today is the enforcement of this law. And that’s why we’re trying to stop it.

 

Dan Morenoff:  Sure. No, that makes sense. In an earlier life, I was voting rights lawyer. And at that point, I know I liked to hone in on something that other voting rights lawyers often obscured, which is that it’s a Voting Rights Act not the Incumbent Rights Act. I mean here, on the one hand, I mean, you’re clearly right that the opportunities available to your clients as people interested in serving are being dictated on the basis of their sex. I understand why that’s objectionable. But it sounds like there’s also a second objectionable side to this in that the rights of every Iowan to vote for who they want is being constrained by the statute and that they’re literally not allowed to elect who they would prefer to this body. Is that a viable theory here as well, or is this really entirely about ballot access?

 

Wen Fa:  Yeah. So our claim is based on the fact that our clients are prohibited from running because of their gender. But I think one could certainly make the argument that Iowans want the best people who are the most qualified to serve on these commissions, and you have people in the communities who think that Raak Law would be a great commissioner, who think that Mr. Broekemeier, our other client, would be best able to select these people to be Iowa Court of Appeals and Iowa Supreme Court justices. This is an extremely important job. And I can definitely see an argument that they want the best people selecting judges to Iowa’s courts.

 

Dan Morenoff:  I was still expressing that as a hypothetical argument that we made under the Equal Protection Clause, that these people, these voters, are being constrained, told they may not vote for who they want for a government office. It occurs to me that another way that that same concern could be expressed would be to say that this may, in fact, be a violation of the Republican Form of Government Clause, in that if the sine qua non of a—forgive that—of a republic is that the people get to pick their representatives to make their decisions, and they’re not allowed to on the basis of what appears to be a federally constitutionally prohibited constraint, among other things that doesn’t sound like it actually is allowing Iowans to run their republic. It’s been a long time since I looked into whether a Republican Form of Government Clause challenges have any viability at all. But, I mean, is that — am I just talking, or is that something that also is legitimately in play here?

 

Wen Fa:  I’m certainly no expert on the precedent there. I will say that — I will say this because I think you followed a very persuasive amicus brief, friend of the court brief, in our challenge to our women quota law in California that requires a certain number of female board members on publicly traded boards that are headquartered in California. I think you can make a strong argument that just as in the women quota case, this law forces individuals to discriminate. This law directly discriminates against individuals, but it also forces voters to discriminate against individuals because it forces them to vote for only men or for only women depending on where they live. So I think that’s another strong argument in this case. 

 

Dan Morenoff:  And as long as you brought the Meland case—where you’re right, I have actually supported y’all with a pair of amicus briefs the two times you’ve been at the Ninth Circuit — yeah, the Ninth Circuit; you’re back there now—I know it has been argued because, well, I was the one the one who argued it that you had mentioned that intermediate scrutiny applies here. And I know that there are a host of opinions that have said that when there’s an equal protection challenge to a governmental actor’s sex discrimination that this is what we apply. 

 

I can’t help noticing that in the Supreme Court’s most recent equal protection challenges to sex discriminatory governmental practices, they seem to have bifurcated that analysis, that if they have pretty clearly left that in place for what the government does as a market participant or with its spending powers, they seem to be doing something different where governments are discriminating on the basis of sex in their role specifically as sovereigns. I think Sessions v. Morales Santana was an immigration case where Congress had required the disparate treatment of individuals depending on whether their mother or father was a U.S. citizen—something like this—in the country legally. There, the majority, including Chief Justice Roberts, did make gestures towards the intermediate scrutiny standard. But it doesn’t appear that that’s what they actually applied. 

 

It looks like having talked about that, when they actually gauged an invalidated the statute, they didn’t look for whether there was an exceedingly persuasive policy. They didn’t look at the tailoring of whether there was any substantially related — whether the policy was substantially related to any exceedingly persuasive policy. Instead, they required a close means-ends fit, which doesn’t sound like the loose substantially related test that we’ve seen for decades, and flatly just invalidated it as a lump classification. I guess what I’m asking is, am I right to perceive that this is what in fact the Court has been doing when it deals with the Court—sorry, the Court—when it deals with governments as sovereigns discriminating based on sex? And if so, is intermediate scrutiny even the right test here at all, or is there something really more exacting which Iowa has grossly failed? I mean, I don’t think they even hit the intermediate scrutiny standard here. But even if they did, is there this higher threshold they have to clear, which they can’t?

 

Wen Fa:  So I think what that gets at is the fact that I think courts have rightly treated intermediate scrutiny as a form of heightened scrutiny that’s very similar to strict scrutiny. So while both those standards, despite differences in formal labels and how the tests are — the factors contained in each test, I think what the Court has really said is that you have to identify an important interest in remedying discrimination. You have to show that the ways that you’re trying to remedy discrimination is actually tied both in terms of time duration and also in terms of scope to the discrimination that you have evidence for which you’re trying to remedy. 

 

And I think that gets at a very, very important principle. Chief Justice John Roberts famously said in the Parents Involved case—which I believe was decided 15 years ago—that the way to stop discrimination on the basis of race is to stop discriminating on the basis of race. I think you have the similar principle in terms of gender or sex where the only way to stop discrimination is for the government to stop discriminating. 

 

The only area where I think maybe we might quibble or not—or maybe you’re just playing the devil’s advocate here—but I do think that the government discrimination is problematic to the same extent both when it’s acting as a sovereign and also when it’s acting as a market participant. I know some of the Court’s cases, for example in the Dormant Commerce Clause area, has distinguished between the two. But the government a market participant because of its scope in a whole lot of things. And I don’t think it’s justifiable for the government to say, “We’re going to prefer men for certain jobs, or we’re going to go with certain vendors on the basis of race.” I think that’s just as pernicious and wrong in my opinion as [crosstalk 27:05].

 

Dan Morenoff:  Sure. And we’re going to be tying right across in just a moment. But before we make that leap, I mean, I do just want to clarify it’s not that I’m arguing that this is the optimal standard or the one that I would like. I am suggesting that it’s what the Court has done, that analytically they seem, one, to be policing sex discrimination of governments as market participants under the standard they’ve cited to for decades, which whether it makes sense as a different standard or not is at least clearly established. 

 

But that when we’re talking about government as government—and this shows up in the whole series of cases culminating in Oberstellar as well—that when government is acting as sovereign, they’re applying this different form of heightened scrutiny which looks much more like strict scrutiny does. With that said and with you having provided this wonderful segue, Californians for Equal Rights v. Alameda, I am not a Californian. I don’t even know where Alameda County is. What can you tell me about this case?

 

Wen Fa:  So Alameda County is the county that covers Oakland, California. It’s in the Bay Area. Californians for Equal Rights Foundation v. Alameda County deals with government-imposed set-asides in public contracting—set-asides on the basis of race. The first question you might have here is, “What the heck is public contracting?” So one question that I feel like people like us, Dan, in the pro-liberty arena hear a lot from people who might disagree with our approach is, “Who will build the roads?” My answer is always the same people who build the roads now. Because the government does not come out itself and build the roads, they hire private companies to build roads, highways, bridges, schools, and so forth. The difference is the projects are overseen by the government and they’re paid for by the government. So in other words, they’re paid for by the taxpayers. 

 

I think a little bit of background on contracting itself is going to be helpful here. In contracting, you have usually one general contractor who is responsible for the overall project—so for example, one general contractor responsible for building the Brooklyn Bridge or the I-80 repairs on the I-80 highway—and then you have subcontractors beneath that who are responsible for specific areas of the project. A large project might have dozens of subcontractors—those who specialize in trucking, paving, fencing, traffic signals, electrical. The list goes on and on. 

 

Dan Morenoff:  Right, providing steel, providing cement —

 

Wen Fa:  Absolutely.

 

Dan Morenoff:  — all the vendors, everyone up the stream getting anything into the general contractor and their execution of the larger project.

 

Wen Fa:  Absolutely. So where does race come in here? So government usually gives the award to general contractors based on a fitting process in which contractors, general contractors, can submit bids for certain projects that are forthcoming. And the government usually gives those bids to the lowest responsible bidder. Lowest bidder is something that everybody can understand—lowest bidder that meets qualifications in the contract that bids at the lowest price. But the responsible bidder part is a little bit more thorny, and it’s defined differently depending on jurisdiction. In some jurisdictions, it’s licenses, financial resources, skills, abilities, past performance on previous jobs. Those can all go into the government’s determination of what’s a responsible bidder. 

 

In Alameda County as well as in some other places, jurisdictions in the United States, race is baked into this whole notion of responsible bidder. So for example, in Alameda County, we’re challenging a pair of programs that say that you have to meet a 15 percent participation goal for a contract. You have to give 15 percent of the contracting dollars to minority owned businesses or you’re not going to be considered a responsible bidder. There’s a good faith exception. But the good faith exception is you basically have to meet a list of almost a dozen different big factors. And even with that, the government can still exercise its discretion in rejecting your bid. So the only way for a contractor, general contractor, to be sure that it’s going to be the lowest responsible bidder is to meet this with so-called participation goal, which we consider it a set-aside because it really coerces contractors to meet it. 

 

Dan Morenoff:  And just to hone in there, they can’t be sure they’re going to be the lowest bidder. But the only way they can be sure they won’t be thrown out without even reading to see what their price bid is would be to comply with the responsible element by meeting this threshold. 

 

Wen Fa:  Right. And some people might ask — it’s a 15 percent participation goal in both of these programs. Some people might ask, “Well, what is the big deal?” Two responses to them. First, I think any amount of racial discrimination, any quota, would be important and unconstitutional in that it mandates treatment of people as members of a group rather than as individuals. Second, when you look at this 15 percent requirement in practice and how contracting actually works, it can really be the entire contract for some specialty subcontractor. 

 

So if you have a general contractor that performs half the work, and you even have five subcontractors—I think that would be a relatively small project—five subcontractors, each doing ten percent of the work, if you have an area in which ten percent of the minority goal is going to be hit, for example in trucking, by a minority-owned subcontractor that the county has had experience in the past, that would freeze out other nonminority certified subcontractors from participating in those public projects just because they are not minority owned. They might be well qualified, might have many great employees regardless of race working for them, but they are just disqualified. They’re frozen out of those jobs because of their status, because of the race of their owner.

 

Dan Morenoff:  The race of their ownership. Let me ask, how do they define minority? What do they mean?

 

Wen Fa:  Yeah. So this is a very important issue in equal protection law. They define minority as everybody except for white individuals. And this thing comes up. David Bernstein, a professor at George Mason, just published a book, a very good book called Classified on this, in which he just kind of calls out the arbitrariness of racial classifications in America. So you have terms like “Hispanic,” which denote people from countries who speak certain languages. And then you have terms like “Asian,” which covers over half of the world’s population and encompasses people from dozens of different countries ranging from China to the Philippines, to India, and so forth. So these racial classifications themselves are very broad, very arbitrary. I don’t think you could say anything about an individual just based on his or her membership in one of these groups. And that’s just another reason why these race-based classifications are so pernicious.

 

Dan Morenoff:  Let me throw this at you just because I know there was a case that I was involved in in which it wound up being material. Is there a racial majority in Alameda County? I know that most urban areas in America, large urban areas in America, the answer is no. If this terminology is excluding apparently really one racial group on the basis of race, its terminology seems to assume that that group is the majority. Is that true?

 

Wen Fa:  I actually don’t know the demographics of Alameda County. But I think your point really emphasizes an important principle and that a lot of these terms are borrowed from one jurisdiction to the other. So Alameda County itself, I think, borrows a lot of its terms from California. California borrows its term from the federal government. And in many contexts today, that just makes absolutely no sense. Because as you were suggesting, some of these counties—many counties in the United States—don’t even have a majority population. So I think that’s just one of many things wrong with these programs. 

 

Dan Morenoff:  Sure. Okay. So let me ask you this. Let’s for just a minute only deal with federal law.

 

Wen Fa:  Sure.

 

Dan Morenoff:  Alameda County is — well, it’s a county. It’s a subdivision of California. It’s therefore government. It’s covered by the Fourteenth Amendment and the Equal Protection Clause. We’re talking about contracting. An awful lot of state and local contracting has federal money that flows out of take your pick of statutes into jurisdictions to pay for such projects. Presumably, we’re also talking about Title VI. There may be other statutes as well. Look, I mean, there’s a facial level of this sounds like it can’t possibly be legal under those things. I know and I know you know that nonetheless there are governments that for a very long time have engaged in different kinds of contracting programs in order to better represent their communities. Can you talk a little bit about what federal law would require a jurisdiction to do for that not to be deemed a violation of the Fourteenth Amendment?

 

Wen Fa:  So in the race context, the Constitution requires the government to show a compelling interest in remedying discrimination and it requires a government to show that its measures to remedy discrimination are narrowly tailored to that [inaudible 37:57].

 

Dan Morenoff:  Right. And how do they show that in order to justify a contracting program?

 

Wen Fa:  So many jurisdictions have these contracting programs. They show a compelling interest. And by the way, I just want to put a marker down that I disagree with many of these things, all these things that courts have endorse. And that’s, I think, one of the reasons that makes this case so important. To show a compelling interest, the government usually hires a company for millions of dollars to conduct what is called a disparity study showing a disparity between the number of minority-owned businesses who work in this field and also the number of minority-owned businesses that the government expects them to work in this field and really extrapolates, I think, improperly discrimination on the basis of that. 

 

So you have cases saying that racial disparities are not enough in places like education, in places like housing, in many aspects of American life. But more or less, in the field of public contracting for whatever reason, racial disparities have been endorsed as pretty much conclusive proof of intentional discrimination that itself allows the government to discriminate more. And we think that’s wrong, and we think that’s — I think that has been sort of a flaw in jurisprudence by many courts, lower courts, that I think we are trying to correct. 

 

Dan Morenoff:  Before we run on from that, I do want to flag that the Supreme Court has said that Title VI, by the way, is not a disparate impact statute, that there’s some argument that’s out there about whether nonetheless Title VI’s regulations are disparate impact regulations. I know I have a view of whether it’s conceivable that an agency could constitutionally craft regulations that impose a standard that the Supreme Court has said the statute does not. But understanding that and understanding that, nonetheless, there have been lots of lower courts which have seemingly taken the position that you can comply with Title VI, and you can comply with the Fourteenth Amendment through showing a disparate impact of a race neutral contracting baseline I guess is how I should say that. Let me ask, does Alameda County have such a disparity study?

 

Wen Fa:  So Alameda County, the programs today are based off of a disparity study from 2003. I know they’re in the process of conducting another disparity study, but it’s very — my opinion is these disparity studies, it’s pretty much don’t show intentional discrimination at all to justify further racial discrimination. But in any event, you can’t discriminate on the basis of evidence you’ve gathered in the early 2000s in the George W. Bush administration. As you mentioned earlier, Dan, even race-based programs, even race-based programs that are clearly remedial have to be time limited and have to be tailored to the precise scope that they are necessary to remedy discrimination. Alameda County, even viewing the light most favorable to them, has no evidence of the sort. And I think really highlights the weakness of its case here.

 

Dan Morenoff:  So if we were in the world of federal law alone—federal law with the Fourteenth Amendment, Title VI—they haven’t done — they don’t have anything in the present tense that would meet their evidentiary threshold. Yes?

 

Wen Fa:  They do not. 

 

Dan Morenoff:  Okay.

 

Wen Fa:  And even if there was a compelling interest—and we’re just talking about federal law; we’ll get to state law—but even if they had a compelling interest, the narrow tailoring analysis also requires programs to be narrowly tailored in terms of the use of race has to be limited. They have to exhaust race-neutral alternatives. There has to be, as you said, a sunset period. What I found in program after program is that after one of these disparity studies is done, they have nominal sunset periods where they’ll say, “We’ll reevaluate in five years,” but they do that — I’ve seen programs in which they do that for three decades now—over three decades now. And in some cases, the set-aside actually gets increased. So there’s no real sunset period with these programs. And I think that’s just another problem with these race-based contracting programs.

 

Dan Morenoff:  Sure. And I mean, again, plugging in a different area of law, that’s starting at some point, that starts to sound like Shelby County, right? You may very well have had a fact based reason to — why something that would otherwise be unconstitutional is allowed to deal with the eventualities present, but just because you renew it 25 years later doesn’t mean that unless you actually create a new record and actually use the new record to re-up that that even — I mean, I think that was actually invalidated under, I want to say, a rational basis test, that there was no rational basis for continuing to use data from the 1972 presidential election on turnout and on voter registration figures in deciding who was on the naughty list and who wasn’t. 

 

Okay. Federal law, federal law we’re going to set aside for just a moment because Alameda is actually part of a state. That state’s California. And California’s its own law here. What is California’s law here?

 

Wen Fa:  So California has Prop 209, which prohibits racial discrimination of any kind in public education, public employment, and, as relevant here, public contracting. So we think that by providing flat out preferences on the basis of race, Alameda County is also violating Prop 209. You don’t even have to get to the whole strict scrutiny analysis on Prop 209. Prop 209 just prohibits racial discrimination. And in addition to being correct, it’s also something that I would note that individuals in California—even though it’s recognized as a largely blue state—are very supportive of this prohibition on racial discrimination, as they should be. 

 

In 2020, there was a legislative-led effort to repeal Prop 209 and to allow government for whatever reason to start discriminating on the basis of race in public education, employment, and contracting. And that initiative was actually placed on the ballot in the 2020 election, and voters all across California overwhelmingly rejected it. And it think it highlights that individuals want to be treated on the basis of their abilities, accomplishments, and aspirations as individuals and not on the basis of race. 

 

Dan Morenoff:  I totally agree. And in fact, on that Prop 16 vote, it’s worth mentioning that one, the majority that rejected the effort to repeal 209—the California Civil Rights Initiative—that the majority that refused to do so was actually larger in 2020 than the majority that put it into the state constitution—what—24 years earlier at a time when the state was dramatically less diverse. Modern California is both more diverse and more opposed to this than the state was when it added this to its state constitution. 

 

I want to hit back on one thing you said, which was that the presence or absence of strict scrutiny under 209. Am I right that the California courts have actually been very clear that, even if you can meet strict scrutiny, we don’t care, and that the federal and state courts have said that that’s just fine because what federal law grudgingly allows is not the final word on what states can do to give their people greater protection of their rights as individuals against this kind of disparate treatment based on race?

 

Wen Fa:  Yeah. So state law in California, Prop 209, contains a blanket prohibition on racial discrimination of any kind. To be sure, I think the federal Constitution, the Equal Protection Clause under the correct understanding of that should adopt a similar something that is substantially the same, where racial discrimination is wrong regardless of any sort of amorphous justification the government can give that. You have that misbegotten exception to the Equal Protection Clause prohibition on racial discrimination in Grutter, where the Court said, “You can actually discriminate to achieve the goal of furthering racial diversity.” I know the Supreme Court is considering a couple of cases this term dealing with racially based admissions programs at Harvard and University of North Carolina in which they might overrule that decision. I think it should. But I think state law right now, Prop 209, really does what the federal Constitution should do, which is to prevent discrimination on the basis of race period. 

 

Dan Morenoff:  Let me go — I’m going to ask, I think, two other small questions here before we should try at least to open this up, because I know we’re starting to run short on time. Disparate impact. Disparate impact seemingly has nothing to do with 209, yes?

 

Wen Fa:  No. Disparate impact — so disparate impact, you can always use a disparate impact as a starting point to try to prove a case for intentional discrimination. But disparate impact in itself, you have disparate impact all over the country. And they can be based on unrelated factors. They can be based on differential abilities of individuals. And more importantly, they can be based on different aspirations of individuals. If certain individuals want to do certain things and other individuals want to do other things, I think that’s a product of a free society. That shouldn’t be cause for concern. And I think it’s wrong to treat disparate impact as the end-all be-all, and it’s as itself conclusive evidence of intentional discrimination. 

 

Dan Morenoff:  Sure. I mean, I know that Gail Heriot—who’s a member of the U.S. Civil Rights Commission, a professor at the University of San Diego and I’ll proudly also mention chairman of the ACR Project Board—has written that there’s literally no program of any kind that does not have a disparate impact on someone. I think she has a standing bet—I don’t remember what the bounty is that she’ll offer—that if anyone can identify any rule that doesn’t have a disparate impact on some group, that she’ll cut the check and pay them. And in I think it’s like 10, 15 years, no one has been able to find anything that that’s not true of. So there’s a reason that disparate impact by itself can’t be preclusive proof of intent if it is literally everything in the world is unconstitutional. 

 

But even aside from all of that, even imagining that disparate impact had such an enhanced function under California law—and I don’t think it has any—even if strict scrutiny applied—which it doesn’t—even if there was some way out of the flat prohibition of 209, is there any proof of — sorry, is there any proof of intentional discrimination or even a disparate — I shouldn’t say — is there any proof of any of this in Alameda County and its contracting?

 

Wen Fa:  No, there isn’t. Some states and local governments have tried to prove intentional discrimination through the use, as I mentioned earlier, of disparity studies. Alameda County’s disparity study is extremely stale, decades old. And even when you take into account disparity studies, no disparity study I am aware of has ever pinpointed specific evidence of intentional discrimination by which you can actually remedy that discrimination. In practice, they point to disparities. And in so doing, they advance the goal, the use of racial quotas, and I think that’s wrong. I think that it really undermines the public faith in the public contracting process, which is a shame both because it threatens equality before the law but also because, unfortunately, I think there is a lot of public contracting going on in sort of the number of public roads, public highways, things that the federal, state, and local governments are involved in today.

 

Dan Morenoff:  Let me ask one last question, and feel free to say this is something that you are not going to opine on given that you’re actually involved in this litigation. Especially in the Californians for Equal Rights v. Alameda County, given the presence of 209, the staleness of any evidence, the irrelevance of the stale evidence, this seems really obviously illegal. And I guess my question is—it’s a question that I know I get asked a lot, and I want to ask you and see what your answer is to it—what makes them think that they can do this?

 

Wen Fa:  I think it’s a fixation on equality of outcomes between groups. In 2010, when they passed one of these programs — no, sorry, in 2010, the city council, the city attorney actually recommended that they repeal one of these programs because of another decision because they said, “Well, under the logic of that decision, this program is flatly unconstitutional.” And they refused to do that. So I think it’s a fixation on group representation. I know you mentioned earlier the Shelby County case, which I completely agree with the general principle that even evidence that clearly is intended to remedy discrimination at some point becomes stale and no longer — and itself discriminatory because they no longer remedy discrimination. 

 

But here, a lot of these programs are adopted in a different era—for example, in the late ’80s—and you have a Supreme Court case, Croson v. City of Richmond, which deals with a similar program in Richmond, Virginia, in which justice O’Connor’s opinion actually mentioned that the program was a product of racial politics, racial stereotyping, and this notion that people should be treated as groups. Whereas the Constitution demands that the government treat people as individuals.

 

Dan Morenoff:  Right. Right. I like to use the phraseology that all Americans have shared civil rights, which are equally protected for all of us. That’s the whole point. I know we’ve got at least a couple questions, and I think we can fit in one or two of them. One offered by Jeffrey Wood reads, “How similar is the Alameda County rule to the federal executive order directing firms doing business with the federal government to set and report their goals for specified contracting and subcontracting? To what extent would your challenge also apply to that rule?”

 

Wen Fa:  Yeah. So there are a lot of programs, both state-based programs and federal-based programs around. If I understand the question, I believe the program that he’s mentioning directs the different agencies and departments to set goals. And I think many of those goals could be a violation of an individual’s right to equal protection because it’s a federal government under the Fifth Amendment, due process [inaudible 55:35].

 

Dan Morenoff:  Maybe. Now, there’s a whole other issue [crosstalk 55:39].

 

Wen Fa:  Yes. There’s a whole debate.

 

Dan Morenoff:  On how that’s in the Fifth Amendment, whether it’s in the Fifth Amendment, whether it’s somewhere else in the Constitution? If nothing else, we can say the Supreme Court, eight of the nine justices—Justice Jackson has not written on this yet—eight of the nine justices clearly agree that somewhere the federal Constitution has the same equal protection constraint on federal activity that the Fourteenth Amendment applies to the states.

 

Wen Fa:  Right. And that was Adarand as well. So the federal government has programs that also contain set-asides on the basis of race. So for example, there are federal, I think, small business set-asides that have target sheltered markets to where you can only compete if your business that is certified on the basis of one of a few characteristics—including race, including gender, some of them have veteran status—and to the extent that they’re limiting opportunities on the basis of race, we think that those are just as wrong and just as unconstitutional in that they deprive individuals of opportunities based on something as crude and arbitrary as their membership in a racial group.

 

Dan Morenoff:  In an — and, again, I’m going to quote —

 

Wen Fa:  Exactly, yes.

 

Dan Morenoff:  I’m going to paraphrase David Bernstein, “in an arbitrarily defined racial classification.” I think we do have time for one more question. This one asks, “What would be ways that you would consider to be constitutional to ensure that historically underrepresented groups have a truly equal shot at positions like this, because we can’t just pretend discrimination and implicit bias in these areas does not exist?” Do you want to field that?

 

Wen Fa:  So one, I think I would dispute the premise of the question. I think there isn’t any evidence of discrimination. I think the main evidence of discrimination here is what the government is doing in discriminating against contractors on the basis of the race of their owners. And regardless of the debate on implicit bias, there is no answer to say that implicit bias must be — the way to combat implicit bias must be to incorporate more explicit bias and explicit discrimination on the part of government entities. I think we should eliminate discrimination on the basis of race by stopping governmental entities from discriminating on the basis of race. 

 

I think the way forward is by empowering people—not this vision of victimhood that some people who call for racial balance really advance—but I think we should do it through a system of empowerment. We should allow for ways to maximize individual opportunities. Some of the other work that a lot of my colleagues have been engaged in here at Pacific Legal Foundation outside of the equality context deal with arbitrary restrictions on one’s right to earn a living, arbitrary barriers to school choice, the arbitrary barriers to housing for people to live where they want to live and to advance opportunity for all Americans. I think that’s the way forward. We should protect opportunity by protecting a system of the Constitution that is properly understood to protect equality before the law, to protect the equal rights of individuals by virtue of their being individuals. 

 

Dan Morenoff:  Let me bounce off of you one additional thought that I would toss in there. The same way that those of us who’ve long argued that it is basically wrong and illegal and unconstitutional for schools to discriminate on the basis of race in admissions, but they could instead have rules to assure that those who for some structural reason have had less opportunities get real access to admissions—something like a first-generation college student requirement or a benefit specifically for institutions whose students come from families below whatever income threshold. 

 

The same way that you could do that for these things, you could also craft some similar race-neutral program to assure that first time business owners or businesses startups or startups founded by first time college graduates, you could craft this however you wanted without using race. But you could craft something that if we take seriously the argument that the so-called equity mongers usually advance on things like for why we need to have race conscious programming—that there is some kind of structural racism preventing people from having equal opportunities—if we take seriously their analysis yet still reject as illegal and wrong their conclusion on what to do about it, there’s something we can do about it. Just deal with the underlying inequality, focus on it. 

 

Because it doesn’t really matter why someone is from a family that has lacked a history of college education, is in this generation growing up impoverished, maybe has a history of prison in their background. You can make up whatever set of factors you think are important and would otherwise justify such a program and just target those. Because if you do those, then it doesn’t really matter what that person’s race is. You’re still giving this person who does have a legitimate disadvantage an opportunity. So it’s not actually needed or necessary. And frankly, the scoring by these cumbersome, artificial categories doesn’t help. If anything, it just makes the government’s efforts to fix the problem less efficient and more unjust.

 

Wen Fa:  Yeah. I think school choice is a great one because cookie cutter public schools do not work for every student. They do not work for many disadvantaged, low-income students from lower income neighborhoods. So I think we need systems that provide opportunity by being tailored to individuals as individuals. 

 

Dan Morenoff:  Sounds great. I think we’re a minute over. So I don’t want to continue to rail. I think the two of us could talk for quite a while about these and other things and related issues. But thank you. I really appreciated having the chance to have this conversation with you, and I’m really interested in following how these cases work out.

 

Wen Fa:  Thank you, Dan.

 

Chayila Kleist:  Indeed, thank you both. On behalf of myself and the Regulatory Transparency Project, I want to thank our experts for their time and expertise. And I want to thank our audience for tuning in and participating. We welcome listener feedback at [email protected]. And if you’re interested in more from us at RTP, you can continue to follow us at regproject.org. You can also find us on all major social media platforms. Again, thank you for joining us today. And until next time, we are adjourned.

 

[Music]

 

Conclusion:  On behalf of The Federalist Society’s Regulatory Transparency Project, thanks for tuning in to the Fourth Branch podcast. To catch every new episode when it’s released, you can subscribe on Apple Podcasts, Google Play, and Spreaker. For the latest from RTP, please visit our website at www.regproject.org.

 

[Music]

 

This has been a FedSoc audio production.

View more