The Reality of Racial Balancing and the Fight for Equal Protection

By Janet Levy | November 25, 2024

In Don Lemon’s edgy interview with Elon Musk that ended his talk-show deal with X, Lemon baits the billionaire entrepreneur, asking: “Do you believe women and minority pilots are inherently less intelligent and less skilled than white male pilots?”

Without blinking, Musk hits home with: “No. I’m just saying we should not lower the standards for them.”

When Lemon pursues the point, claiming no evidence of standards being lowered, Musk retorts that there is cited evidence of “significant cases where standards are lowered.”

Lemon then changes tack. He says Boeing had admitted that a faulty door panel was responsible for the incident being discussed. Musk, matter-of-factly, points out that a recently introduced DEI-related incentive structure at Boeing should have focused on passenger safety.

DEI – diversity, equity, and inclusion.  As American institutions intensify their push for “DEI hires and appointments,” the three words threaten – and, in many cases, have become an excuse to violate — the Equal Protection Clause of the 14th Amendment, which states: “No state can deny equal protection under the law to any person within its jurisdiction.”

The reality of DEI is that diversity is being used to justify racial discrimination against majority whites and high-achieving minorities, equity is being used to achieve equal outcomes instead of providing equal opportunities, and inclusion is being used to exclude people who oppose the ideology du jour.  Merit, hard work, initiative, and innovation be damned.

A survey of one thousand hiring managers by Resume Builder found a shocking preponderance of “reverse discrimination” in the workplace: 52% of the respondents believe the practice is in place; one in six have been asked to deprioritize hiring white men; and 48% have been asked to prioritize diversity over qualifications.

The situation is similar in federal and state board appointments, where race and sex quotas have been a feature since the 1980s. In some cases, such quotas even apply to the boards of privately held corporations. A Pacific Legal Foundation (PLF) report found that 25 states have legislated unconstitutional quotas for appointing individuals of preferred races, sexes, or group membership to their boards rather than selecting them based on ability and experience.

Fortunately, an active movement to restore the American ideal of equality and reward merit, grit, and the innovative spirit that made this nation great is turning the scales:

• NBC News recently reported that Republican lawmakers in more than 30 states have introduced or passed more than 100 bills to restrict or regulate DEI initiatives.
• Since the Supreme Court’s landmark June 2023 ruling in Students for Fair Admissions v. Harvard, restricting race-based college admissions, complaints and lawsuits against DEI admissions and appointments have increased.  In fact, efforts are afoot to ban DEI outright in higher education and public offices.  Governor Greg Abbott of Texas signed a bill banning DEI at all state-funded colleges.
• In May 2022, the Los Angeles Superior Court overturned California’s Women on Boards law (SB826), which threatened corporations with fines ranging from $100,000 to $300,000 for violating a quota requirement of up to three female directors. The following year, a federal district court threw out California’s 2020 AB979 statute, which required racial and gender identity quotas on boards. Both SB826 and AB979 were declared unconstitutional.
• Taking a cue from this, corporate management is returning to focusing on creating value for shareholders and excelling at delivering goods and services. Many have even dropped DEI language from hiring ads and documents and ended the practice of sham DEI surveys and cultural awareness events.

Meanwhile, PLF, which specializes in such constitutional cases and has a high success rate—winning 18 out of 20 cases at the Supreme Court—has seen increased challenges to state and municipal board appointments prioritizing race, sex, or gender identity. The pro bono foundation is bringing legal action in numerous cases across the country.

In Tennessee, the governor is required to appoint one black physician to the state’s Board of Medical Examiners and one racial minority chiropractor to the Board of Chiropractic Examiners. These requirements have been in place for over thirty years. Tennessee has also mandated that a minority member serve on its Board of Podiatric Medical Examiners. Still, the seat has been vacant for over a year while a qualified non-minority individual has waited in vain.

PLF has filed a federal lawsuit on behalf of Do No Harm (DNH), a nonprofit committed to equality in healthcare. The foundation is challenging the quotas on the medical and chiropractic examiners’ boards as violating the equal protection guaranteed by the Constitution. The foundation is also fighting a federal case for DNH over the minority quota on the podiatric examiners’ board. PLF has taken up similar cases for medical board appointments on behalf of DNH in Montana and Louisiana.

In Minnesota, PLF is challenging race-based appointments to the Board of Social Workers. The state requires that the board’s 15 members include at least five racial minorities. In Alabama, another PLF lawsuit, filed on behalf of the American Alliance for Equal Rights, challenges the requirement that the real estate appraisers’ board have at least two members from racial minorities.

In one case related to board appointments, PLF succeeded even before going to court. Stephen Haile, of Conway, Arkansas, has fostered more than 300 children with his wife. He was seeking a position on the state’s Social Work Licensing Board but was denied because he is white. In March 2023, shortly after PLF filed a case, Governor Sarah Huckabee Sanders abolished race quotas for boards, and the case was withdrawn.

In Iowa, PLF – on behalf of its client Charles Hurley, a former state legislator – challenged the constitutionality of a law requiring gender balance on the state’s Judicial Nominating Commission, which sends the governor recommendations for appointments of judges to appellate courts.  The governor is to appoint nine members to the 17-member commission, while the Iowa bar elects the remaining eight.  The quota restriction was that the bar must elect two commissioners “of different genders” from each of the state’s four congressional districts.

In January this year, a judge granted the foundation’s request for a summary judgment and declared the Iowa law unconstitutional without the suit going to trial. While the complaint was pending, a bill had been introduced in the Iowa Senate to repeal “gender balancing” in all state boards. Unfortunately, it did not pass. Nevertheless, the court’s decision on the judicial commission holds.

In all these cases, the critical legal point that came up was the Equal Protection Clause of the 14th Amendment, ratified in July 1868, and meant chiefly to grant citizenship and civil and legal rights to African Americans, most of whom had been emancipated from slavery.  Ironically, it has been turned on its head against the white majority and other hardworking minorities like Jews and Asians, who have prioritized academic excellence, initiative, and merit.

The process began with the affirmative action plans of the 1960s, during which race and gender requirements for municipal boards, school admissions, jobs, and other positions first appeared. Later, there were calls for racial and social justice. Now, DEI and ESG quotas have been normalized, and so-called “racial balancing” has been institutionalized.

But the cases that PLF has won, and the way courts have begun to see the ugly reality of “reverse discrimination,” show that there is hope for America to be great again – by valuing merit and ability above sex, gender orientation, or the color of one’s skin.

As Musk – who happens to be white – counters Lemon in the interview, “What advantage does the color of my skin give me?  … Actually, it was very difficult for me to reach here. … I think we want to get away from making everything a race or a gender or whatever issue and just treat people like individuals.”