The American Civil Rights Project

Along with Manhattan Institute and Hamilton Lincoln Law Institute, the ACR Project filed at the Supreme Court an amicus brief supporting the Boston Parent Coalition’s cert. petition. You can see the full brief, below.

Earlier this year, the Supreme Court declined the parallel petition asking it to reconsider the Fourth Circuit Court of Appeals’ decision smiling on Fairfax County’s Board of Education’s decision to rejigger the admissions policy of Thomas Jefferson High School for Science & Technology to reduce the number of Asians admitted through the application of carefully chosen, non-racial factors. Justice Alito then warned that the lower Court’s reasoning might spread as a blueprint for evading the Harvard decision. Boston Parent Coalition shows how right he was.

Boston Parent Coalition presents the Justices a chance, on even clearer facts, to take a mulligan. It allows the Court to address the unconstitutionality of governments pursuing preferred racial balances through carefully engineered non-racial proxies. The Boston Public Schools maintain three “exam schools,” so-called because their admissions traditionally rested heavily on standardized testing. That includes Boston Latin, the oldest public school in North America, which taught five signers of the Declaration of Independence. The exam schools long served the Boston school system as crown jewels, usually considered among America’s best high schools. Mid-pandemic, while refusing to fully re-open the city’s schools, the Boston School Committee overhauled the exam-schools’ admission system. They replaced the exam system with one allocating seats in the exam schools by zip code. Multiple Committee members expressly supported the changes because they promised to racially balance the schools’ populations. Indeed, three of the seven School Committee members that voted for the changes later resigned over racist comments. The committee chair resigned after a hot mic caught him ridiculing Chinese-American parents registered to oppose the proposal. Two other members resigned after the Boston Globe published their racist texts complaining about White and Asian parents.

These are not allegations. They are the findings of lower courts admitting the Committee’s plain racial animus while nonetheless upholding the changes as constitutional. The First Circuit expressly recognized that “the Plan was chosen precisely to alter racial demographics.” It did not care, because Asian and White applicants still got through at rates higher than these groups’ share of the city’s student population.

The opinion is rife with error and the court should take it for at least four reasons. You can see them in the brief.

But at bottom, the Court should heed Justice Alito’s warning and so confront the moves of every racialist decisionmaker in America to defeat judicial scrutiny. It should do so now, in Boston Parent Coalition, to avoid the Fourth and First Circuit’s decisions from practically overturning the Court’s rightfully-lauded, highly popular Harvard decision.

ACR Project, Manhattan Institute, and HLLI Jointly File Amicus Brief Supporting Cert Petition of Boston Parent Coalition for Academic Excellence | American Civil Rights Project Along with Manhattan Institute and Hamilton Lincoln Law Institute, the […]

Today, along with the Center for Equal Opportunity, we wrote to the ABA Business Law Section, raising issues with the legality of a section program that appears to discriminate based on race, s*x, and other prohibited factors in qualifying and disqualifying applicants for employment as judicial clerks.

The Diversity Clerkship Program secures employment in judicial chambers for its beneficiaries. It provides compensation for that employment in the form of a stipend. As advertised by the ABA BLS, these positions expressly serve a training function, providing a “background [that] will prove invaluable to a career in business law, whether it be litigation or transactional work.”

The Diversity Clerkship Program automatically qualifies for consideration for these coveted positions applicants “of color” and women, while allowing other applicants to qualify only if they assert an LBGTQ+ identification, a disability, or a history of overcoming social or economic disadvantages. That structure appears to bring the Diversity Clerkship Program into violation of numerous applicable laws, including at least 42 USC Section 1981 (one of the main surviving provisions of the Civil Rights Act of 1866) and Title VII of the Civil Rights Act of 1964, as well as potentially the 14th Amendment’s equal protection clause, the federal judiciary’s policy on equal opportunity, Title VI of the Civil Rights Act of 1964, and Title IX of the Education Amendments of 1972.

The ACR Project and CEO believe it to be particularly important that organizations as associated with and committed to the rule of law as the ABA BLS and America’s judiciary live up to our national consensus against discrimination and comply with long-standing nondiscrimination laws. The ABA shouldn't violate that kind of foundational nondiscrimination laws. And it definitely shouldn't violate those laws in how it places employees into the chambers of America's judges.

Read the full letter!

The ACR Project and Center for Equal Opportunity Raise Seeming Illegality of ABA Business Law Section Diversity Clerkship Program | American Civil Rights Project Today, along with the Center for Equal Opportunity, we wrote […]

The ACR Project, Manhattan Institute, and the Buckeye Institute together filed an amicus brief with the 11th Circuit Court of Appeals, supporting American Alliance for Equal Rights in its challenge to the legality of the race-based contracting program maintained by the Fearless Fund family of entities. You can see the full brief, below.

The Fearless Fund appellees unapologetically choose with whom they are willing to contract and with whom they categorically refuse to do business based on race. Such plainly racial policies of exclusion violate one of the main surviving provisions of the Civil Rights Act of 1866, America’s very first civil rights law. Congress embedded these rights into the Fourteenth Amendment, assuring that they would be beyond constitutional challenge. Nonetheless, in this litigation, a district court classified the Fearless entities’ policy of contracting to invest solely with one race as “expressive activity” “intend[ed] to convey a particular message,” and so protected by the First Amendment. The district court refused to enjoin the policies on the basis that applying the Civil Rights Act of 1866 would “modify [the Fearless entities’] expression[.]” It similarly contended that a judicially conjured defense to Title VII employment-discrimination claims protected the Fearless entities’ non-employment contracting policy from violating the same provision.

The lower court grasped at straws to deny plainly justified injunctive relief. It was wrong to do so. We argue that the Court of Appeals should reverse the lower court’s decision and remand with instruction to enjoin pursuit of the discriminatory contracting policy.

ACR Project, Manhattan Institute, and Buckeye Institute Jointly File Amicus Brief Supporting American Alliance for Equal Rights in Challenge to Fearless Fund's Race-Based Contracting Program | American Civil Rights Project The ACR Project, Manhattan Institute, and the Buckeye Institute together […]

The ACR Project filed at the Supreme Court an amicus brief supporting two Indiana school system’s cert. petition. You can see the full brief, below.

The petition asks the Court to resolve the deepening circuit split concerning the impact of the Equal Protection Clause and Title IX on federal funding recipients’ maintenance of separate bathrooms, locker rooms, and showers for the two biological s*xes. Our brief addresses, specifically, how the Seventh Circuit Court of Appeals’s interpretation of Title IX is remarkably misguided, misreading the Court’s Bostock opinion to deny school systems the flexibility to handle the situations their transgender students face as specific circumstances require and to impose a one-size-fits-all approach untethered to any enactment with democratic legitimacy.

ACR Project Files Amicus Brief Supporting Cert Petition of Indiana School Systems in Transgender Bathrooms Case | American Civil Rights Project The ACR Project filed at the Supreme Court an amicus […]

Last week, the ACR Project and Hamilton Lincoln Law Institute together filed an amicus brief with the U.S. District Court for the Western District of Louisiana, supporting Louisiana in its challenge to the EPA’s misapplication of Title VI and its regulations to impose disparate-impact analysis.* You can see the full brief, below.

The EPA argues that its Title VI regulation from the early 1970s is and always has been a catch-all, all-purpose, disparate-impact regulation. It argues that its mid-litigation dismissal of its investigations into whether a pair of Louisiana’s otherwise proper permitting decisions had such unjustified disparate impacts, and so allegedly vi0lated that regulation, moots Louisiana’s challenge to the EPA’s systematic national application of its re-interpretation of that regulation. It insists that any argument to the contrary comes fifty years too late and conflicts with Supreme Court precedent.

The EPA misstates the content of its regulation and the state of substantive law. The regulation’s text and modern constitutional law show that it is not and could not constitutionally be a catch-all, all-purpose, disparate-impact regulation. We argue that the district court should apply the canon of constitutional avoidance to refuse to read the regulation as the EPA prefers or, if it decides that it cannot, should hold that the regulation unconstitutionally exceeds the EPA’s power.

Among other things, we also argue that the district court must reject the strategic gamesmanship of the agency curtailing its investigation mid-litigation in an effort to avoid judicial scrutiny of its continuing, illegal “enforcement” of the regulation at issue. The EPA undertook that effort as part of the administration’s pattern of simultaneously pursuing an interpretation of its regulatory power at odds with the Supreme Court’s interpretation of Title VI and dodging challenges to the legality of that “whole of government” effort.

* - ...to be precise, we filed a motion for for leave to file an amicus brief, with that amicus brief attached as an exhibit.

ACR Project and Hamilton Lincoln Law Institute Jointly File Amicus Brief Supporting Louisiana in Its Litigation with the EPA | American Civil Rights Project The ACR Project and Hamilton Lincoln Law Institute together filed […]

Today, we filed with the US Treasury Department a Title VI complaint, concerning Vermont’s recently announced launch of an intentionally racially discriminatory business coaching and training program.

According to VT Gov Phil Scott, the program, funded entirely with federal money, provides “outreach, support, training, technical assistance, networking, and resource navigation for BIPOC business owners and workers.” The state legislation authorizing that use of federal money expressly defines “BIPOC” to include -- only - those who are “Black, Indigenous, and Persons of Color.”

The state thus intentionally, expressly excludes Vermonters from participating in and denies Vermonters the benefits of this federally-funded program based on their race, color, and national origin. Title VI has prohibited exactly that for almost 60 years.

This isn't a close call.

Our complaint asks the Treasury to enforce T-VI (by getting VT to fix the program or cutting off state funding to VT), to enforce ARPA (by recouping from VT the funds used advance the violation), and to assure VT's future compliance with long-settled law.

ACR Project Complaint Concerning Vermont's Violation of Title VI Through Discriminatory Business Coaching Program | American Civil Rights Project Today, the ACR Project filed with the U.S. Treasury Department a Title VI complaint, concerning Vermont's recently announced launch of an intentionally racially discriminatory business coaching and training program.

Today, the ACR Project and the Manhattan Institute for Policy Research jointly submitted a comment to the U.S. Department of Education, raising numerous potentially fatal defects in the Department’s proposed alteration of the regulation governing the men’s and women’s athletic programs run by federal funding recipients.

The Department’s proposal would re-write President Ford’s regulation that has long compelled recipients to equalize the athletic opportunities afforded across men’s and women’s programs. Throughout almost all of Title IX’s history, that 48-year old regulation has compelled recipients to equalize the number of teams, number of roster-spots, number and amount of scholarships, and academic supports for athletes in their men’s and women’s programs. The Department would insert into this regulation limitations on the ability of any recipient to “adopt[ ] or appl[y] s*x-related criteria that would limit or deny a student’s eligibility to participate on a male or female team consistent with their gender identity[.]” Far from the minor tweak the Department prefers to imply its rule change would work, this alteration would be transformative.

As we explain in the comment (which you can read below), the Department’s alteration make hash of Title IX’s protections of male and female sports programs, without Congress or the Courts having made any justifying change to the substantive law the regulation would enforce. The Department has claimed that the Supreme Court’s Bostock opinion supports or requires the rule change, but Bostock (closely read) is irreconcilable with the Department’s proposed regulation. Equally problematic, the Department’s proposed addition either requires a thorough reinterpretation of both the existing regulation and of Title IX that would gut federal law’s protections of male and female sports or would make it impossible for any federal funding recipient to comply. Furthermore, despite the Department’s feigned moderation, its proposed rule change would deny funding recipients any real option to pursue a “different approach” to the equalization of opportunities in ways respecting the fairness and safety of women’s sports, functioning instead as a flat-out mandate to terminate all single-s*x athletic programs.

The Department has chosen to celebrate Title IX’s achievements in its 50th anniversary year by quietly calling off the entire project of affording men and women equal athletic opportunities. That can’t be right and shouldn’t go forward.

Joint Submission by ACR Project and Manhattan Institute of Comment on Department of Education's Proposed Change to Title IX Regulation Governing Men's and Women's Sports | American Civil Rights Project Today, the ACR Project and the Manhattan Institute for Policy Research jointly submitted a comment to the U.S. Department of Education, raising numerous potentially fatal defects in the Department's proposed alteration of the regulation governing the men's and women's athletic programs run by federa...

Last night, the ACR Project filed an amicus brief at the Supreme Court of Washington State, addressing what’s surprisingly an issue of first impression: the meaning of one of the protected classes in the Voting Rights Act.

This case, Portugal v. Franklin County, has been litigated under the Washington Voting Rights Act. Washington passed the WVRA in 2018 to extend protections beyond those offered by federal law to “protected classes.” It defined “protected classes” to include “language minority group[s], as this class is defined in the” federal Voting Rights Act.

When Congress passed the original Voting Rights Act in 1965, it protected Americans against only discrimination based on race and color. That changed in 1975, when Congress added as an additional protected class the term relevant to the current WVRA litigation: “language minorities or language minority group[s].” Congress simultaneously defined “language minorities and language minority group[s]” to include: “persons who are American Indian, Asian American, Alaskan Natives or of Spanish heritage.”

The VRA did not define “persons … of Spanish heritage,” though. No prior case has addressed the meaning of the phrase. Instead, every case nominally applying this language has seen the parties assume its meaning without analysis. Unfortunately, their universal assumption is wrong — those cases have granted irrelevant relief to the wrong people, without beginning to address the very-real concerns of those Congress protected in 1975.

Our brief explains how the historical context, the VRA’s text (supported by contemporaneous usage), the whole enactment rule, and the legislative history all point toward the same meaning of “persons … of Spanish heritage,” as adopted in the WVRA by the Washington legislature. That language protects America’s native-Spanish-speaking citizens, who face linguistic barriers to their communication with the larger American electorate.

We’ve asked SCOWA to recognize this clear meaning of the VRA (and the WVRA), to prevent the self-appointed, English-speaking spokespeople for all “Hispanics” who brought the case from misappropriating the legal protections of their Spanish-speaking relations, and, so, to start the process of assuring that Congress’s 1975 VRA amendments (and the WVRA, which incorporated them) actually protect that at-risk population.

ACR Project Files Amicus Brief with SCOWA in Redistricting Case | American Civil Rights Project The ACR Project filed an amicus brief, asking the SCOWA to recognize the clear meaning of the Voting Rights Act (and the WVRA), to prevent the self-appointed, English-speaking spokespeople for all "Hispanics" who brought the case from misappropriating the legal protections of their Spanish-speaking....

On behalf of the Californians for Equal Rights Foundation and individual San Francisco taxpayers, we notified the City and County of San Francisco, the San Francisco Unified School District, the UC System, and the State of California’s Health and Human Services Agency of our intent to sue to halt their illegally discriminatory guaranteed income programs.

This host of governmental agencies participates in (and uses state resources to advance) a set of four guaranteed income programs that violate the 14th Amendment and the California Constitution by disqualifying beneficiaries based on race, ethnicity, s*x, s*xuality, and gender. As the agencies are all federal funding recipients, the same programs’ racial discrimination also violates Title VI.

Notice of Intent to Sue CA Entities | American Civil Rights Project Today, the ACR Project notified San Francisco, the San Francisco USD, the UC System, and California's Health and Human Services Agency of our intent to sue over the unconstitutional guaranteed income programs in which they participate.

On behalf of the National Center for Public Policy Research, a concerned shareholder, the ACR Project demanded that American Airlines Group, Inc. publicly retract its illegal, discriminatory policies. American’s leaders apparently adopted the illegal policies at issue after reversing a long-standing corporate policy of avoiding comment on controversial issues. In the interim, leadership has admitted that it “absolutely” considers race in hiring, specifically, pilots.

The policies now at issue, however, are far broader. They inject race into the company’s internal and external contracting, which violates both state and federal law (including Title VII of the Civil Rights Act of 1964 and state laws where American concentrates its operations). None of this is legal or has been colorably close to it for decades. The policies will draw legal challenges. American’s admissions should assure it loses those challenges. Those cases cumulatively threaten to materially harm American’s stock value.

Internally, the company’s leaders have committed to “hire and retain” employees to “ensure the diversity of our team reflects the diversity of our customers.” U.S. law forbade such race-balancing for its own sake generations ago. Operationally, American’s leadership annually adopts ill-chosen racial quotas. In 2021, they required more “representation” for a group already exceeding the national average in the airline’s workforce. In 2022, they set thresholds for all “people of color,” despite company data showing such groups’ “representation” varied radically (for some, widely exceeding national averages, for others, dramatically missing them). To help this “progress,” American joined at least 4 racially defined McKinsey training programs. In each program training enrollees for promotions: (a) participating organizations may only enroll employees of a specified race; and (b) American controls qualifying employees’ enrollment. To further “clearly signal[ ] where the organization stands[,]” American has conditioned the compensation of its “entire leadership team” on their progress toward these racial goals.

Externally, American’s leaders made a parallel “DEI commitment extend[ing] to our supply chain.” They committed to altering the demography of the company’s suppliers, including through a discriminatory “Supplier Diversity Program” that qualifies vendors based on the race, s*x, and gender of their ownership.

The ACR Project has demanded that American’s officers and directors act to retract the policies.

Open Letter to Officers and Directors of American Airlines Group, Inc. | American Civil Rights Project The ACR Project demanded that American Airlines Group, Inc. publicly retract its discriminatory policies injecting race into the company’s internal and external contracting in ways that American law has banned for generations.