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 […]