Tuesday, September 30, 2008

President Bush Signs Landmark Amendments to the Americans with Disabilities Act

With praise from disability groups and business organizations alike, President George W. Bush has signed into law amendments to the Americans with Disabilities Act (“ADA”) that will significantly expand the protections afforded to disabled individuals. The new law, entitled the ADA Amendments Act of 2008 (“ADAAA”), expressly overturns several landmark Supreme Court decisions narrowly interpreting the definition of “disability” and will make disposing of ADA cases prior to trial more challenging for employers. The changes to the ADA take effect on January 1, 2009.


The ADA was signed into law by President Bush’s father, President George H. W. Bush, on July 26, 1990. Title I of the ADA prohibits employers from discriminating against a qualified individual with a “disability.”

When the ADA was enacted, the definition of “disability” already had been interpreted broadly by the courts under the Rehabilitation Act, a law upon which the ADA was modeled. The ADA’s flexible definition of “disability” triggered claims by individuals with relatively minor or temporarily disabling conditions.

Beginning in the late 1990s, the U.S. Supreme Court decided a series of cases in which it confronted, for the first time, the ADA’s potential broad coverage. Fearing that the ADA’s coverage would be much more expansive than Congress intended, the Supreme Court narrowed the scope of the ADA’s “disability” definition by seizing on the ADA’s “findings” that “some 43,000,000 Americans have one or more physical or mental disabilities” and that individuals with disabilities are a “discrete and insular minority.” In the years that followed, studies revealed that employers prevailed in more than 90 percent of all ADA cases.

In the aftermath of these decisions and research, the National Council on Disability (“NCD”) issued a report in December 2004 stating that new legislation was needed to “restore” the ADA and proposed a draft bill entitled the ADA Restoration Act of 2004. Although it declined to pursue the broad proposal urged by the NCD, in 2007, Congress introduced its own ADA Restoration Act, which sought to eliminate the requirement that plaintiffs prove impairments “substantially limit” one or more “major life activities.”

Fearing the pendulum might shift too far in the other direction and, in some ways, lower the value of the ADA’s protections for people with more disabling conditions, members of Congress later pushed for a more limited bill with a better chance of enactment. Disability groups and business organizations, along with Democrats and Republicans in both the House of Representatives and the Senate, worked together to forge a compromise bill. Their efforts culminated in the ADA Amendments Act of 2008, which passed through Congress with overwhelming bipartisan support.

According to Jackson Lewis Partner and National Coordinator of the Firm’s Disability, Leave and Health Management Practice Group, Frank Alvarez, “Many of the ADAAA’s changes are good and the final bill is much better than the legislation that was initially introduced. It essentially puts the ADA back to where most thought it would be when it became effective in 1992.”

A Closer Look at the ADAAA’s Provisions

Congressional Findings and Purposes

The ADAAA propounds an extensive list of congressional findings and purposes that will shape how the Equal Employment Opportunity Commission (“EEOC”) and courts interpret and apply the ADA. Explicitly rejecting the Supreme Court’s decisions in Sutton v. United Airlines, Inc. and Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, the legislation provides: “[T]he question of whether an individual’s impairment is a disability under the ADA should not demand extensive analysis.” The legislation also directs the EEOC to draft new regulations requiring a less demanding standard for an individual to establish a substantially limiting physical or mental impairment under the ADA.

The ADAAA removes the original findings in the ADA regarding the number of Americans with disabilities (43 million) and the finding that individuals with disabilities are “a discrete and insular minority.” By removing this language, Congress explicitly enlarged the class of individuals the ADA is intended to protect, thus eliminating the historical basis cited by the Supreme Court for narrowly construing the definition of “disability” under the ADA.

A Closer Look at the ADAAA’s Provisions

Congressional Findings and Purposes

The ADAAA propounds an extensive list of congressional findings and purposes that will shape how the Equal Employment Opportunity Commission (“EEOC”) and courts interpret and apply the ADA. Explicitly rejecting the Supreme Court’s decisions in Sutton v. United Airlines, Inc. and Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, the legislation provides: “[T]he question of whether an individual’s impairment is a disability under the ADA should not demand extensive analysis.” The legislation also directs the EEOC to draft new regulations requiring a less demanding standard for an individual to establish a substantially limiting physical or mental impairment under the ADA.

The ADAAA removes the original findings in the ADA regarding the number of Americans with disabilities (43 million) and the finding that individuals with disabilities are “a discrete and insular minority.” By removing this language, Congress explicitly enlarged the class of individuals the ADA is intended to protect, thus eliminating the historical basis cited by the Supreme Court for narrowly construing the definition of “disability” under the ADA.

Definition of Disability

While the ADAAA retains the ADA’s definition of “disability,” it provides that term “shall be construed in favor of broad coverage of individuals . . . to the maximum extent permitted by the terms of [the ADA.]” The ADAAA also clarifies that “[a]n impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.” The ADAAA’s congressional findings and purposes state the EEOC’s existing regulations interpreting the term “substantially limits” are “inconsistent with congressional intent, by expressing too high a standard” and express “Congress’ expectation that the [EEOC] will revise that portion of its current regulations that defines the term ‘substantially limits’ as ‘significantly restricted’ to be consistent with [the ADA].”

It is unclear precisely what the EEOC’s revised standard will be. However, given the ADAAA’s
congressional findings “that the question of whether an individual’s impairment is a disability under the ADA should not demand extensive analysis,” whether an individual’s impairment rises to the level of a “disability” under the ADA will certainly be an easier standard to meet and, as a corollary, likely will not be a determinative factor in resolving summary judgment motions in an employer’s favor.

No Consideration of Mitigating Measures

Overruling the Supreme Court’s Sutton v. United Air Lines decision, the ADAAA prevents courts and employers from considering mitigating measures an individual may be using when determining whether the individual is disabled. The only exceptions are ordinary eyeglasses and contact lenses.

“Regarded As” Having a Disability

The ADAAA lowers the standard to prove an employer discriminated against an individual whom it “regarded as” having a disability. Traditionally, individuals claiming they were “regarded as” having disabilities had to prove the employer mistakenly regarded them as having impairments that substantially limited a major life activity. The ADAAA will now hold an employer liable under a “regarded as” theory if individuals can prove discrimination because of an actual or perceived physical or mental impairment, whether or not the impairment actually limits or is perceived to limit a major life activity.

There is some good news for employers on the “regarded as” front. The ADAAA clarifies that “regarded as” claims cannot be based on transitory and minor impairments where the impairment is expected to last less than six months. Also, employers are not required to provide a reasonable accommodation to individuals who are regarded as disabled, an issue over which the federal courts of appeals were previously split.

The Potential Impact of the ADAAA on Employers

Litigation under the ADA will no doubt become more complex as the emphasis shifts away from whether plaintiffs are disabled and toward questions of whether employers have complied with the law. While employers have traditionally prevailed in more than 90 percent of all ADA lawsuits, this was principally due to the difficulty plaintiffs had in proving they were “disabled” under the statute. With this largely removed, employers should be prepared to litigate more challenging issues, such as the scope and meaning of “reasonable accommodation,” “undue hardship” and “essential job functions” to establish compliance with ADA obligations.

Some other emerging ADA areas will likely include: whether specific performance or conduct standards are “job-related and consistent with business necessity”; what workplace risks satisfy the ADA’s “direct threat” standard; and standards for determining whether an employer has sufficiently explored “reassignment” as a reasonable accommodation. Employers are also likely to see a rise in “regarded as” claims in light of the ADAAA’s lower evidentiary standard for proving these claims. Beyond litigation, employers will need to provide reasonable accommodations with much greater frequency.

What Employers Should Do Now

With the ADAAA going into effect on January 1, 2009, now is the time for employers to review existing procedures for ADA compliance at every stage, including hiring, medical testing, accommodation, leave and termination. Employers must prepare to inject flexibility into their policies and practices to meet the ADA’s demanding standard for reasonable accommodations. According to Mr. Alvarez, “Employers should train supervisors on individualized assessments and develop protocols or guidelines for responding to workplace limitations posed by injuries or illnesses. Forget about trying to discern whether someone meets the ADA definition of ‘disability’ – it’s a litigation issue at best, and, in most cases, a losing one.”

Among other things, Mr. Alvarez suggests employers review job descriptions since they are frequently a starting point for an individualized assessment. Employers also should consider implementing a formalized process for addressing reasonable accommodation requests or reviewing reasonable accommodation procedures already in place. Employers skilled in “individualized assessment” often rely on forms, internal guidelines, or template letters to help facilitate communication with individuals with disabilities and their healthcare providers. These practices will become both more common and indispensable as employers grapple with a more demanding and relevant ADA.

Summing up the import of the ADAAA’s passage, Mr. Alvarez offered the following: “The nation clearly supports efforts to protect people with disabilities. No one can argue with the statute’s intentions. But supporting and implementing this law are two different things. Employers need to accept, embrace and master uncertainty. The ADA is a concept law. There are few bright lines or hard and fast rules. People with disabilities feel like they have been denied the rights they were promised back in 1990. Come January 1, 2009, employers should expect to see a significant shift in efforts to enforce the ADA’s prohibitions against disability discrimination. Some employers are ready. Many are not.”

Prepared by Jackson Lewis LLP. www.jacksonlewis.com

OFCCP Makes Minimal Changes to EEO Poster

We have learned that there were minimal changes to the new OFCCP EEO poster. Contractors may continue to use their current posters or they may download free posters from OFCCP’s website at
http://www.dol.gov/esa/ofccp/regs/compliance/posters/ofccpost.htm .

OFCCP Orders Full Compliance Reviews for Every 50th Contractor

On September 17, 2008, OFCCP Deputy Assistant Secretary Charles James issued a directive on the Active Case Management System. In his directive, he announces that as a "Quality Control" measure, "to ensure that contractors are developing and implementing AAPs and that they are maintaining the required supporting data, a full desk audit of the materials submitted is to be conducted on every 25th contractor listed in the Federal Data Selection System (FCSS), even in the absence of systemic discrimination indicators. In addition, a full compliance review -- including an onsite review -- is to be conducted on every 50th contractor listed in the FCSS, even in the absence of systemic discrimination indicators."

Included in the desk audit and full review will be an assessment of compliance with Section 503 of the Rehabilitation Act and the Vietnam Veterans Readjustment Assistance Act (VEVRAA) along with Executive Order 13201.

For a copy of the directive, go to: http://www.dol.gov/esa/ofccp/regs/compliance/directives/dir285.pdf

Ritter: Anti-affirmative action initiative will ‘destroy years of progress’

The Colorado Independent
By Naomi Zeveloff 9/29/08 6:20 PM

Colorado Gov. Bill Ritter lambasted Amendment 46 at a press conference this afternoon, saying that the anti-affirmative action ballot measure will hurt our economy.
“We are in a time in this country and in this state where we have to keep our economy moving forward,” said Ritter, who spoke surrounded by supporters on the west steps of the state Capitol. “Amendment 46 takes us in the wrong direction.”
Ritter said that diversity in the workforce helps the economy and that the ballot measure, which seeks to end race and sex preferences in public contracting, hiring and education, will “destroy years of progress” that the state has made in improving health care, education and jobs.
Ritter’s announcement follows a long trail of similar denunciations. Most recently, the Denver Metro Chamber of Commerce decried the measure.
Amendment 46, known as the Colorado Civil Rights Initiative, is part of a multistate effort by California businessman Ward Connerly to demolish affirmative action. According to a recent analysis by the progressive Ballot Initiative Strategy Center, Connerly has gleaned more than $7 million from his two nonprofits, the American Civil Rights Institute and the American Civil Rights Coalition.
Ritter called Connerly a “constitutional amendment carpetbagger,” saying “it is wrong to allow him to do that to our state, to our Constitution, to our people.”
When asked which state programs will be cut should Amendment 46 pass, Ritter pinpointed the Fatherhood Initiative, a gender-based program that supports struggling fathers and their families. [To read the entire story, go to: http://coloradoindependent.com/9651/ritter-anti-affirmative-action-initiative-will ]

Report From Civil Rights Project/Proyecto Derechos Civiles at UCLA Praises Kentucky’s Success in Diversifying its Colleges

Contact: Gary Orfield
(310) 267-5562
September 29, 2008

Report From Civil Rights Project/Proyecto Derechos Civiles at UCLA Praises
Kentucky’s Success in Diversifying its Colleges

Findings Outlines Challenges Ahead

LOS ANGELES ¬– The Civil Rights Project/Proyecto Derechos Civiles, one ofthe nation's leading research centers on issues of civil rights and racial inequality, yesterday presented its report, "Building on Success," to theKentucky Council on Postsecondary Education (CPE) in Lexington. Thiscomprehensive study of equity in the entire Kentucky system not only assessesthe state’s progress under plans developed to comply with federal civilrights law over the past 26 years, but also recommends strategies for the nextgeneration. The Council, which governs the state’s higher education system,discussed the report and directed its Committee for Educational Opportunity toprepare a new plan by early 2009.This independent assessment of Kentucky’s public colleges and universities by scholars from across the country concluded that the state had made majorprogress. The 168-page report, "Building on Success," documented the state’s progress in providing growing access for black students to its historicallywhite institutions at all levels -- an historic accomplishment -- from community college to doctoral studies. Analysis of survey data from the state’s campuses showed that, in general, African American students feel comfortable and welcome on their campuses. The survey respondents indicated,however, that rich discussion of diversity, much more likely to occur on multiracial campuses, was lagging. The study found that more work was needed assome commitments had not yet been realized. In particular, the state needs totake a broader view in its future diversity planning, one that would build onthe momentum for African American access, and include the state’s rapidlygrowing Hispanic community, as well as, perhaps, whites from highlyimpoverished areas. Two years ago the CPE commissioned the assessment and granted the Civil RightsProject, when it was still at Harvard, full access to data from the Kentuckycampuses and to the system’s leaders. Professor Gary Orfield, who directedthe team of researchers, comments: “The state’s leaders took a bold andunusual risk in giving us unrestricted access to the system without any controlof the final report. We think they have created a positive example for higher education systems across the country and we hope that this report will help carry their accomplishments to the next level in order to realize the state’svery ambitious goal of doubling its number of college graduates. This is something that can only be done if they fully develop the talents of studentsfrom groups that were once excluded or neglected.” Orfield then challengedother states to follow Kentucky’s steps and prepare for the next generation.Recommendations for Improvement:The recommendations for improvement focus on severe leakages in the pipeline ofopportunity in the state: a high dropout rate from high school; a relativelylow rate of enrollment in college coming out of high school; a weak transferrate from community college to four-year campuses; students who take longer tograduate, and graduate at lower numbers from the four year campuses, comparedto national averages. All of these transition points tend to pose risksparticularly for minority students. The study also finds that the state’s commitments to transform it’shistorically black campus, Kentucky State University, have not been yet beenfulfilled after more than 25 years of plans. KSU is still very small comparedto the other campuses, attracts mostly undergraduates with weak academicbackgrounds in need of serious remediation, and has far to go in producing astrong graduation rate for the students it enrolls. In fact, 87 percent ofKentucky’s black college graduates hail from historically white institutions. The report goes on to say that in spite of its status as a vital resource, KSUhas not been upgraded sufficiently to become genuinely competitive."Building on Success" concludes that the state monitoring has been criticallyimportant to the success of the effort to date and recommends ways in which theprocess could be improved -- by more collaboration between state officials andcampus leaders and by encouraging researchers on campuses to carefully evaluatetheir programs to support diversity and make recommendations for improvingthem. The report also advocates that the Kentucky Council on Higher Educationcontinue to oversee statewide progress and monitor the performance of variousinstitutions, though in a more collaborative manner. Engaging researchers atthe eight public universities not only will develop knowledge through studiesof their campus approaches and plans, but also will produce strong and credibleresearch for better policy in Kentucky. The full text of the report will be available at:www.civilrightsproject.ucla.edu

About the Civil Rights Project at UCLA

Founded in 1996 by former Harvard professors Gary Orfield and Christopher EdleyJr., the Civil Rights Project/Proyecto Derechos Civiles is now co-directed byOrfield and Patricia Gándara, professors at UCLA. Its mission is to create anew generation of research in social science and law on the critical issues ofcivil rights and equal opportunity for racial and ethnic groups in the UnitedStates. It has commissioned more than 400 studies, published 14 books andissued numerous reports from authors at universities and research centersacross the country. The Supreme Court, in its 2003 Grutter v. Bollingerdecision, cited the Civil Rights Project's research.###

Monday, September 29, 2008

OFCCP Webinar Presentation Available

OFCCP's September 10, 2008 Webinar Presentation, "OFCCP: The Homestretch" is now available. The presentation addresses the agency's accomplishments, new directives, online application systems, the Good Faith Initiative for Veterans Employment (G-FIVE), electronic recordkeeping, retention provisions, new web design, and Federal Contractor Selection System schedule. For a copy of the presentation click here: http://www.dol.gov/esa/ofccp/Presentation/homestretch_pres.pdf

or go to: http://www.dol.gov/esa/ofccp/.

SDSU, ex-swim coach reach $1.45 million settlement

Sign on San Diego.com
Lawsuit had alleged sex discrimination

By Brent Schrotenboer
September 26, 2008

Former San Diego State swim coach Deena Deardurff Schmidt has reached a $1.45 million settlement in her Title IX sex discrimination lawsuit against the school.
The settlement includes a $317,420 lump sum and $682,580 in an annuity. The settlement also provides $450,000 in attorneys' fees. Her attorney, Thomas Tosdal, said an undisclosed part of those attorneys' fees also went to Schmidt.
“We are glad that San Diego State came forward and made a fair and reasonable settlement so both sides can put it behind them,” Tosdal said.
Schmidt declined to comment. An Olympic gold medalist in 1972, she filed suit in November 2007, alleging several years of mistreatment at the school, plus “unequal and inadequate” facilities, pay, practice times and administrative support during her tenure from 1994-2007. Schmidt claimed her chances of success as a coach were diminished when SDSU closed its old campus pool in 2000, forcing the team to train off-campus. Her swimming and diving program had finished last in the Mountain West Conference championships during her previous five seasons.
Her suit said she had fought to build a new pool. But after SDSU's new $12 million pool facility opened in March 2007, SDSU Athletic Director Jeff Schemmel told Schmidt in June 2007 that her contract wasn't being renewed. At the time, Schmidt was making $68,000 annually. She also was scheduled to undergo surgery for melanoma and previously had been diagnosed with breast cancer.
“The parties agreed that this settlement recognizes the substantial efforts by Schmidt to implement, develop and improve the women's swimming program at SDSU, and reflects her contributions as a coach,” SDSU said in a statement. “The case was settled at its early stages before any determination of liability was considered or reached.” [To read the entire story, go to: http://www.signonsandiego.com/sports/aztecs/20080926-9999-1s26azsuit.html ]

Friday, September 26, 2008

Advocates Praised as Bush Signs Bill to Restore ADA

National Coalition for Disability Rights
601 Pennsylvania Avenue, NW, Suite 900S
Washington, DC 20004

September 25, 2008

ADA Watch and the National Coalition for Disability Rights Praises Advocates and Policymakers As President Bush Signs ADA Amendments Act into Law
(Washington, DC) For nearly two years, disability rights advocates have traveled the Nation in a modified bus educating citizens and policymakers alike of the pressing need to restore vital civil rights protections of the Americans with Disabilities Act (ADA).

Today, President Bush signed the ADA Amendments Act into law and ADA Watch and the National Coalition for Disability Rights, the nonprofit organizations behind the Road To Freedom bus tour, praised all of those involved in this successful campaign to advance disability rights.

In recent years, the ADA - the world's first human rights law for people with disabilities - has been dramatically narrowed in the courts leaving citizens with epilepsy, diabetes, mental illness, HIV-AIDS and other disabilities unprotected from discrimination. The ADA Amendments Act clarifies the intent of Congress and reverses the "judicial activism" that has resulted in more than 95% of employment-related ADA cases being dismissed on summary judgment.

Senator Tom Harkin (D-Iowa), lead sponsor of the ADA Amendments Act, acknowledged ADA Watch/NCDR's role in passage of this legislation on the floor of the Senate, thanking the Road To Freedom's crew for "dedicating almost 2 years of their lives traveling on a bus around the country to every State, showing people about the importance of restoring the protections of ADA."

ADA Watch/NCDR founder and president, Jim Ward stated today, "This is a monumental victory for people with disabilities. As America seeks to respond to the economic challenges we face, this law - if enforced - will ensure that people with disabilities are fairly included in the workforce and that we can do our jobs free from discrimination."

"ADA Watch and the National Coalition for Disability Rights praises the thousands of Americans who produced and participated in Road To Freedom bus stops as, together, we called for restoration of the ADA. Likewise, we praise the tireless efforts of advocates such as Andy Imparato, Sandy Finucane, Curt Decker, Chai Feldblum, Jennifer Mathis, Arlene Mayerson, Shereen Arent, Donna Meltzer, Nancy Zirkin, Michael Collins, Yoshiko Dart, Tom Olin, Debbie Fletter Ward and so many others." ADA Watch and the National Coalition for Disability Rights (NCDR) is a coalition of national, state and local disability, civil rights and social justice organizations united to protect and promote the human rights of children and adults with physical and mental disabilities. For more information, go to www.adawatch.org and www.roadtofreedom.org


New Study: Men’s Football, Basketball Programs Limit Other Men’s Sports, Not Title IX

Diverse Issues in Higher Education
by Lois Elfman
Sep 26, 2008, 12:40

Another men’s college wrestling program is discontinued and familiar accusations fly: it’s the fault of Title IX and money being spent on women’s sports. Time and again critics point to Title IX as the reason for cuts in men’s sports.

“We really believe that the Title IX blame game should end,” said Dr. Marj Snyder, chief planning and programming officer for the Women’s Sports Foundation (WSF). On Sept. 24, in honor of the 35th anniversary of Billie Jean King’s victory over Bobby Riggs in “The Battle of the Sexes,” the WSF released the detailed study “Who’s Playing College Sports? Money, Race and Gender.”

Dr. John Cheslock, the report’s author and an associate professor in the Center for the Study of Higher Education at the University of Arizona, repeatedly noted that his research showed clear evidence that both men’s and women’s participation have increased during the last 15 years.

“For Title IX, I present three different pieces of evidence that indicate that, on average, schools have responded to Title IX by increasing women’s participation rather than decreasing men’s participation,” Cheslock said.

He said there are no simple explanations why sports like wrestling and men’s gymnastics have declined in participation, but possible reasons could be the relatively high number of injuries and the high cost of insurance. Sports that have seen increases in participation, such as lacrosse, have students with high academic qualifications and tend to be of higher income levels, things that are of potential interest to college presidents and athletic directors. [To read the entire story, go to: http://diverseeducation.com/artman/publish/article_11739.shtml ]

Thursday, September 25, 2008

Kay Jewelers parent faces EEOC sex-discrimination suit

David Schepp
The Journal News
September 25, 2008

BUFFALO - Federal officials yesterday charged Sterling Jewelers Inc., which operates Kay Jewelers stores in malls in Yorktown Heights and West Nyack, with discriminating against female employees by paying them less than their male counterparts and denying them promotions.
Female retail-sales employees were victims of a system in which promotion and compensation decisions were made in an "excessively subjective" fashion, the U.S. Equal Employment Opportunity Commission said in a statement announcing its lawsuit against the company, the nation's largest specialty-jewelry retailer.
Sterling Jewelers permitted or encouraged managers to deny female employees equal pay compared with men in similar positions and equal access to promotions, the EEOC said.
A spokesman for the Akron, Ohio-based company wasn't available for comment by phone and didn't respond to an e-mail message.
"We hope this case is a wake-up call to corporate America that sex discrimination in employment must be taken seriously and addressed appropriately," EEOC New York District Director Spencer H. Lewis Jr. said in a statement.
It should be a "no-brainer" in the 21st century that women should be paid and promoted based on merit, not gender, he said. [Full Story at: http://www.lohud.com/apps/pbcs.dll/article?AID=/20080925/BUSINESS01/809250424 ]

Companies Brace for the Office of Federal Contract Compliance Programs' List of Compliance Evaluations

Workforce Management
September 2008

Self-audits can provide protection from the dreaded on-site investigations that occur when the agency suspects discriminatory hiring practices.
By Fay Hansen

October 1 marks the beginning of a new annual enforcement cycle for the U.S. Office of Federal Contract Compliance Programs as the agency unfurls a long list of companies selected for compliance evaluations.
The last cycle, which covered nearly 5,000 employers, ended with a series of million-dollar settlements against companies that could not adequately defend their hiring practices against charges of systemic discrimination.
Companies selected for the new round of evaluations may see nothing more than a desk audit of their hiring procedures. But such an audit could evolve into a highly invasive on-site investigation, with federal agents conducting face-to-face interviews with hiring managers who must defend their selection criteria.
Agency staff have consistently rejected any criteria that may be subjective or "tainted" by the potential for systemic discrimination. In fiscal year 2007, systemic-discrimination charges accounted for 98 percent of the agency’s record $51.7 million in back-pay collections.
The Office of Federal Contract Compliance Programs defines systemic discrimination as a pattern or recurring practice of discrimination against a protected group.
"The OFCCP is now focused on becoming the premier agency for systemic discrimination," says Julia Judish, counsel, employment and labor law, at Pillsbury Winthrop Shaw Pittman in Washington. "The EEOC’s [Equal Employment Opportunity Commission’s] focus is on individual charges. By contrast, the OFCCP is looking to put its limited resources to the best use by concentrating on federal contractors with systemic discrimination.
"The OFCCP has made it clear that it wants to pursue big cases."
Self-audit protection Employers on the OFCCP compliance list receive a letter stipulating that the agency will conduct an evaluation. The list is based on a mathematical analysis of the Employer Information Report (EEO-1) forms that companies submit as part of their federal contract obligations.
"You can’t predict whether you will receive a letter, so aim as if you might and attempt to limit the impact to a desk audit," Judish advises.
Every federal contractor should conduct regular self-audits in anticipation of a compliance review. [To read the entire story, go to: http://www.workforce.com/section/06/feature/25/77/81/index.html ]

Wednesday, September 24, 2008

FedEx loses appeal on EEOC's bid for records

By Howard Fischer
Tucson, Arizona Published: 09.22.2008

PHOENIX — A federal appeals court has rejected efforts by FedEx Corp. to shield information about its personnel records from the U.S. Equal Employment Opportunity Commission.
In a unanimous decision, the 9th U.S. Circuit Court of Appeals said the federal agency is entitled to the materials as part of its investigation of whether the company has discriminated against blacks and Hispanics.
This is the second time the company has lost its legal battle to withhold the documents. A federal court judge in Tucson issued a similar ruling nearly two years ago.
The case has gained the attention of the national business community, to the point that an attorney representing the U.S. Chamber of Commerce and the Equal Employment Advisory Council filed legal papers on behalf of FedEx.
"This is a huge decision," said Sally Shanley, the regional trial attorney for the EEOC.
She said her agency has gotten "a lot of resistance" to these kinds of requests. Shanley said the appellate court ruling should make clear to companies that they cannot balk.
Calls to the FedEx's lawyer in Tennessee were not returned.
Central to the issue is a complaint filed four years ago by Tyrone Merritt, a FedEx employee in Phoenix. Merritt, a handler, said he failed the basic skills test that is required to be promoted to other positions, including customer service agent and courier.
According to Merritt, the test has a "statistically significant adverse impact" on blacks and Hispanics, though the claim does not explain the reasoning behind that contention. He also charged that Anglo employees were promoted over him for other positions such as dispatcher.
In an effort to investigate the case, the EEOC issued a subpoena demanding that FedEx provide what amounts to a list of all the types of personnel information and documents it has in its computers. Shanley said that would provide her agency with a road map to decide specifically what it needed.
FedEx objected for a variety of reasons.
One was purely technical: The company pointed out that Merritt decided to pursue his own civil lawsuit. That, the attorneys argued, stripped the EEOC of any power to investigate further.
But appellate Judge Wallace Tashima, writing for the court, said Merritt had alleged a pattern or practice of discrimination by the company against others. The judge said that gives the EEOC the power to investigate further. [To read the entire story, go to: http://www.azstarnet.com/sn/business/258577.php ]

Judge dismisses complaints that anti-affirmative action petitioners misled voters

The Colorado Independent
By Naomi Zeveloff 9/24/08 7:24 AM

An administrative law judge has thrown out charges that Amendment 46 petition circulators misled people into signing onto the anti-affirmative action measure.
Amendment 46 seeks to end preferential treatment for women and minorities in public employment, education and contracting. The controversially named Colorado Civil Rights Initiative is part of a five-state effort launched by California businessman Ward Connerly to end affirmative action.
Connerly’s campaign has been criticized as a misleading attempt to make voters believe that they are promoting equal opportunity rather than destroying it. And in Colorado, at least a half-dozen people filed complaints with the secretary of state’s office, saying they were duped by petition circulators who told them that signing onto Amendment 46 would uphold diversity programs.
But last Friday, an administrative law judge dismissed those claims because they did not provide enough detail. And though several of the six complainants say they may file their grievances again, the months-long process has left them demoralized.
“I think all of us are going through some form of shock right now,” says Venita Vinson, a retired Denver resident who used to work for former Colorado Rep. Pat Schroeder, a Democrat. Vinson says that she was approached by a petition circulator for the Colorado Civil Rights Initiative last October outside of a King Soopers in Denver. The circulator asked her to sign on for affirmative action. “When I said to the circulator, ‘But we already have affirmative action,’ her response was ‘But it is due to expire.’” Vinson did not read the text of the petition but signed it anyway.
It wasn’t until months later, at a community meeting, that she found out about the true intent of the initiative. “At that point, I was like, ‘Oh my goodness, I signed it.’” The revelation prompted her to file a complaint with the secretary of state to get her name struck from the petition.
Others, like Candace Frie, read the text of the initiative but still signed, not understanding that she was opting to abolish affirmative action. She was approached last February outside a King Soopers in Arvada. “I was going in and a fellow came up to me, an African-American male, and asked me to sign a petition to end discrimination in Colorado,” she says. “I asked if I could read it and it did say it would end discrimination. I didn’t see anything that raised any red flags.” (The language of the initiative prohibits preferential treatment and discrimination.) [To read the entire story, go to: http://coloradoindependent.com/9009/judge-dismisses-compliants ]

Senate Democrats Hold Hearing on Pay Equity for Women

Wednesday, September 24, 2008
By Fred Lucas, Staff Writer

Capitol Hill (CNSNews.com) – Lilly Ledbetter, a former Goodyear Tire plant manager who became a cause célèbre among advocates of gender pay-equity issues, told the Senate Judiciary Committee Tuesday that she has become a second-class citizen. At one point in the hearing, the committee chairman echoed a line from an ‘Obama for President’ television ad, criticizing Republican presidential candidate John McCain’s position on the issue. “My retirement is based on what I earned,” Ledbetter told the panel. “This means I’m treated like a second-class citizen all of my life because that never changes.” Ledbetter lost a pay discrimination lawsuit against Goodyear after the U.S. Supreme Court ruled that she filed the complaint too late. She retired after working 19 years at the Goodyear plant in Gadsden, Ala. The high court said that, under the 1964 Civil Rights Act, an employee must sue within 180 days regarding alleged pay discrimination. Speaking to a group of mostly Democratic senators – some of whom were quick to make electioneering statements – Ledbetter had a sympathetic audience. Senate Democrats introduced the Lilly Ledbetter Fair Pay Restoration Act this year. If passed, the law would extend the limit on how long an employee can wait before suing an employer for pay discrimination. The bill was stopped by a Republican-led filibuster. Of the two presidential candidates, Sen. Barack Obama (D-Ill.) voted for cloture so the bill could come up for a final vote, while Sen. John McCain (R-Ariz.) was not present during the vote but voiced his opposition. Echoing a line from an Obama campaign ad, Senate Judiciary Chairman Patrick Leahy (D-Vt.) referred to McCain, saying, “One senior senator, who didn’t show up to vote on the act, said quote ‘women just need more education and job training.’” Ledbetter said she was “strongly offended” by the McCain statement and that she frequently took continuing education courses while working for Goodyear. [To read the entire story, go to: http://www.cnsnews.com/public/content/article.aspx?RsrcID=36189 ]

Tuesday, September 23, 2008

A losing proposition

USA Today
September 23, 2008

Republicans since Reagan have lined up to oppose affirmative action but have found little political gain in doing so. After a summer fling with the issue, McCain appears to have concluded that he need not go there.
By Peter Schmidt

When Sen. John McCain voiced support over the summer for a proposed Arizona ballot measure curtailing the use of affirmative-action preferences, some critics said he was latching onto a wedge issue long used by the GOP to split Democrats along racial lines.
In the two months since McCain's remarks to ABC's George Stephanopoulos, the senator of Arizona has been conspicuously silent on the issue. Given the politics of affirmative action, that may well be a wise decision.
(Keith Simmons, USA TODAY)
After all, it's a mistake to assume McCain stands only to gain politically by supporting such measures, which appear likely to be on the ballot in Colorado and Nebraska this November.
Affirmative action is indeed a wedge issue. But this wedge has not just divided Democrats. It has also has badly split the GOP.
Social conservatives may have cheered McCain's opposition to affirmative-action preferences by public colleges and other government entities, but his stand could cost him support among other key Republican constituencies.
Many leaders of big business, for example, have long embraced affirmative action as a cost-effective tool for staving off discrimination complaints and diversifying their workforces. When the U.S. Supreme Court weighed in on affirmative action in college admissions in 2003 — in two cases involving the University of Michigan — nearly 70 Fortune 500 companies signed on to friend-of-the-court briefs urging the justices to leave the university's race-conscious admissions policies intact.
Meanwhile, Republican political pragmatists have long worried that opposition to affirmative action will alienate the nation's growing Hispanic electorate and limit the GOP's appeal among women. If McCain's critics are able to use his affirmative action stand — or his increasingly tough stand on immigration — to paint him as racially insensitive, he could lose support from moderate voters.
Avoiding the affirmative-action issue probably was not an option for any presidential candidate this election year, even if the state ballot measures had not come up. The political rise of Democratic nominee Barack Obama — who opposes such ballot initiative as threatening the progress of minorities and women and "all too often designed to drive a wedge between people" — almost naturally evokes discussions of how much the nation has moved beyond its past racial divisions, and whether blacks and other minorities still need the leg up that affirmative action offers.
But in allying himself with those who seek to abolish such preferences, McCain is charging off in a direction where no recent GOP president has gotten far.
Ronald Reagan harshly criticized affirmative action, but in two terms in office, he failed to issue a single executive order ending or even restricting its use by the federal government. His administration was left gun-shy as a result of the uproar over its attempt in 1982 to restore the tax-exempt status of South Carolina's private Bob Jones University, which prohibited interracial dating. (It took just days for his administration to reverse itself.) [To read the entire story, go to: http://blogs.usatoday.com/oped/2008/09/a-losing-propos.html ]

Plaintiffs in Workplace Discrimination Cases Face Uphill Battle

AmLaw Litigation Daily
September 23, 2008

For any attorney who specializes in workplace discrimination cases, the findings of a recent study by two Cornell Law School professors are troubling. (Hat Tip to Legal Blog Watch, which first reported on the study.) The Cornell profs analyzed federal district court records from 1979 to 2006 and found that plaintiffs who brought job discrimination claim cases won a measly 15 percent of the time.Plaintiffs didn't fare any better at the appellate level, where courts reversed fewer than 9 percent of the 2,042 cases that plaintiffs lost between 1988 to 2004. By contrast, the study found that defendants who lost at trial were able to convince appellate courts to reverse 41 percent of the time. But defense attorneys shouldn't be too quick to gloat. The study also found that there was a 37 percent drop in the number of cases brought from 1999 to 2000. Translation: less work for defense lawyers.

Monday, September 22, 2008

NAACP files OFCCP complaint against SEWRPC

JS Online
Posted: Sept. 20, 2008

A complaint filed against the Southeastern Wisconsin Regional Planning Commission accuses the agency of failing to follow federal affirmative action rules and threatens to bar the agency from receiving millions of dollars in federal contracts.
The Milwaukee Branch of the National Association for the Advancement of Colored People filed its complaint with the U.S. Department of Labor and asked for an investigation into hiring practices at the agency and enforcement of rules covering recruitment, hiring and accommodation of minorities.
The complaint was drafted by lawyers from the American Civil Liberties Union in Milwaukee, which targeted SEWRPC last month for allegedly violating civil rights rules in recommending development of an interchange to serve the Pabst Farms development off I-94 in Oconomowoc.
Both complaints build off charges that the region’s primary planning agency favors suburban interests and ignores the transportation needs of minorities and low-income residents in Milwaukee.
SEWRPC officials have countered that its regional plans recommend significant expansion of public transit, and that the burden for putting in more rail and bus service rests with the state and local governments. [To read the entire story, go to: http://www.jsonline.com/story/index.aspx?id=797173 ]

South Africa: Affirmative Action Without a Plan Ruled Discriminatory

19 September 2008
Ernest Mabuza

AN EMPLOYER cannot discriminate against a prospective employee on the basis of race if the employer did not have an affirmative action policy or plan in place, according to a Supreme Court of Appeal judgment on Wednesday.
The court reversed a decision of the Labour Court and found that the appointment of RZ Mkongwa to the post of deputy director at Greys Hospital in Pietermaritzburg unfairly discriminated against Martin Gordon - a white male.
It ruled Gordon had succeeded in showing that the failure to appoint him was inherently arbitrary and therefore amounted to unfair discrimination.
Gordon retired in 2003 and the judgment will not affect Mkongwa's position.
The appeal court ordered the health department to pay Gordon the difference between what he would have earned, had he been appointed to the position in June 1996, and what he actually earned, for the period June 1 1996 to the date of his retirement in March 2003, including interest.
In April 1996, the KwaZulu-Natal health department advertised the post and Mkongwa and Gordon were among the applicants. Gordon had started working for the department in 1967 and was an administrator of three hospitals when he applied for the post.
Mkongwa had started his career with the department in June 1974 as an assistant administrator and had progressed to the position of administration officer in June 1989.
The selection panel decided that Gordon was the most suitable for the post. However, the provincial Public Service Commission did not accept the department's recommendation and directed the department to appoint Mkongwa instead. [To read the entire post, go to: http://allafrica.com/stories/200809190067.html

Poll shows gap between blacks and whites over racial discrimination

Yahoo News
By CHARLES BABBINGTON, Associated Press Writer

WASHINGTON (AP) — Since the nation's birth, Americans have discussed race and avoided it, organized neighborhoods and political movements around it, and used it to divide and hurt people even as relations have improved dramatically since the days of slavery, Reconstruction and legal segregation.
Now, in what could be a historic year for a black presidential candidate, a new Associated Press-Yahoo! News poll, conducted with Stanford University, shows just how wide a gap remains between whites and blacks. It shows that a substantial portion of white Americans still harbor negative feelings toward blacks. It shows that blacks and whites disagree tremendously on how much racial prejudice exists, whose fault it is and how much influence blacks have in politics.
One result is that Barack Obama's path to the presidency is steeper than it would be if he were white.
Until now, social scientists have not closely examined racial sentiments on a nationwide scale at a moment when race is central to choosing the next president. The poll, which featured a large sample of Americans — more than 2,200 — and sophisticated survey techniques rarely used in media surveys, reflected the complexity, change and occasional contradictions of race relations.
More whites apply positive attributes to blacks than negative ones, and blacks are even more generous in their descriptions of whites. Racial prejudice is lower among college-educated whites living outside the South. And many whites who think most blacks are somewhat lazy, violent or boastful are willing or even eager to vote for Obama over Republican John McCain, who is white.
The poll, however, shows that blacks and whites see racial discrimination in starkly different terms. When asked "how much discrimination against blacks" exists, 10 percent of whites said "a lot" and 45 percent said "some."
Among blacks, 57 percent said "a lot" and all but a fraction of the rest said "some."
Asked how much of America's existing racial tension is created by blacks, more than one-third of white respondents said "most" or "all," and 9 percent said "not much." Only 3 percent of blacks said "most" or "all," while half said "not much at all."
Nearly three-fourths of blacks said white people have too much influence in American politics. Only 12 percent of whites agreed. Almost three times as many blacks as whites said blacks have too little influence. [ To read the complete story, go to: http://news.yahoo.com/page/election-2008-political-pulse-race-in-america;_ylt=AmLbC7oTeEEaTPaN7zje456s0NUE ]

Rights for the Disabled

The Washington Post
Congress approves landmark protections for disabled workers.
Monday, September 22, 2008; A14

IT WENT largely unnoticed in a week of economic upheaval, but Congress approved one of the more momentous pieces of civil rights legislation in recent years. The bill, passed overwhelmingly in the House and by unanimous consent in the Senate, will significantly broaden protections for the disabled. It instructs the Supreme Court to act "in favor of broad coverage," a distinction that should make it easier for disabled workers to claim discrimination. By explicitly arguing for a less constrictive interpretation, lawmakers sought to restore the intent of the original Americans With Disabilities Act of 1990; the Supreme Court has imposed a consistently narrow interpretation of the ADA. President Bush has said that he will sign the bill into law despite previous concerns that the legislation would spur excess litigation.
The legislation is the result of two years of remarkable cooperation between business groups and disability rights organizations. The compromise strikes a balance as it guarantees rights for workers with "actual or perceived impairments." For example, airlines can no longer discriminate against prospective pilots if the applicants employ "mitigating measures," such as corrective eyewear. At the same time, the bill limits unwarranted claims by requiring that workers prove they have a disability that "would substantially limit a major life activity when active." The bill will also provide protection, for the first time, to workers with serious ailments such as diabetes, epilepsy and cancer.
Business and disability groups are pleased with the final version of the bill and said that collaborating on the legislation should reduce the number of lawsuits over its implementation. The direct language of the bill, and the laudable cooperation that forged it, should also improve employment levels for the disabled. Two out of three people with significant disabilities are unemployed, a disturbing statistic that disability organizations say is unchanged from when the original ADA became law. This time, Congress's intent is clear, and we hope the courts follow it. http://www.washingtonpost.com/wp-dyn/content/article/2008/09/21/AR2008092101645.html?wpisrc=newsletter

Sunday, September 21, 2008

Affirmative Action is Still Relevant and Needed

Diverse Issues in Higher Education
September 18, 2008
By Elwood Watson

A few weeks ago, the anti-affirmative action ballot measure in Arizona that was supported by Republican presidential candidate John McCain and Black conservative opportunist and hypocrite Ward Connerly failed to garner enough support to be placed on the ballot. Earlier this year, a similar referendum in Oklahoma faced a similar fate. I must admit that I was surprised, yet, gratified to see voters of the traditionally conservative states reject these ingenuous initiatives that were put forth by Connerly and his merry little band of dishonest distorters.
After all, there have been more than a few individuals in the Republican Party who have opposition to affirmative action, an unwritten plank of the GOP platform. What is often interesting is the fact many Republicans and others who oppose affirmative action argue is that what they want is a color-blind society. My response to this is that many of us across racial lines would like to see our nation and the world at large evolve into such a force; however, the sad reality is that we do not live in a society that resembles such a racial utopia by any standard of the imagination. While it is true that affirmative action has been instrumental in integrating many previous segregated institutions, White people have very little to be alarmed about in regards to such a policy. In fact, many businesses and corporations have avidly adopted such inclusionary measures, realizing such a practice that makes good business sense. This was evident when many of these institutions banned together to rally in support for affirmative action which was partly upheld by the Supreme Court. Moreover, it should be well known by now that the biggest beneficiaries of affirmative action are White professional women.
Because Blacks, non-European Latinos and many women, for the most part, have not achieved relative parity with White males, the rationale for such a program still exists. In addition, affirmative action should not be seen as an entity that rewards subpar and incompetent minorities. The vast majority of Blacks who have benefitted from affirmative action are qualified individuals who are fully competent to hold the positions they hold. [To read the entire post, go to: http://diverseeducation.wordpress.com/ ]


Equal Employment Opportunity Commission
September 18, 2008

Teens Among Many Victims of Abuse at Markets, Federal Agency Charged

RENO, Nev. – Scolari’s Warehouse Markets will pay $425,000 and furnish other relief to settle a class sexual harassment and retaliation lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced today.
The EEOC charged in its lawsuit that 19 female employees, several of whom were teenagers at the time, were subjected to repeated and sometimes severe sexual harassment by the company’s senior officers across multiple stores in the Reno area. The EEOC asserted that Scolari’s senior officers and managers inappropriately touched female employees, propositioned them, made lewd comments and passed around naked photos of themselves, among other acts. In addition, the EEOC charged that Scolari’s management failed to address and correct the unlawful conduct, even when the victims complained about it. Instead, the women were fired or were forced to abandon their jobs after they complained about the harassment.
All this alleged conduct violates Title VII of the Civil Rights Act of 1964. The EEOC filed suit in U.S. District Court for the Northern District of Nevada after first attempting to reach a voluntary settlement (EEOC v. Scolari’s Warehouse Markets, CV 04-229 DAE - RAM). A consent decree setting forth the terms of the agreement was approved by the court on Sept. 5.
Under the three-year consent decree resolving the case, Scolari’s agreed to pay $425,000 to the employees identified by the EEOC to have been sexually harassed or retaliated against. As part of the injunctive relief, Scolari’s further agreed to provide training to all employees; provide reports to the EEOC regarding its employment practices for a period of three years; and, to hire a consultant to review its harassment policies and procedures.
“In a case like this, where several of the victims were young women new to the work force, victims of harassment often feel further isolated and marginalized,” said EEOC Los Angeles Regional Attorney Anna Y. Park. “This case shows that employers need to investigate and act on complaints of harassment before the problem mushrooms.”
EEOC’s Los Angeles District Director Olophius Perry added, “Nevada employers need to be vigilant in protecting workers who have the courage to speak out against harassment. The EEOC is determined to protect the civil rights of all workers, and that includes protecting their right to protest illegal mistreatment.”
In September 2004, EEOC Chair Naomi C. Earp (then vice chair) launched the federal agency’s national Youth@Work Initiative -- a comprehensive outreach and education campaign designed to inform teens about their employment rights and responsibilities and to help employers create positive first work experiences for young adults. The EEOC has held more than 3,700 Youth@Work events nationwide sincethe program was launched, reaching more than 229,000 students, education professionals, and employers.
Further information about the Youth@Work campaign, including how to schedule a free Youth@Work outreach presentation, is available on the agency’s web site at http://www.eeoc.gov/initiatives/youth/index.html. Specific EEOC-related information for teens is available on the Youth@Work web site at http://www.youth.eeoc.gov
The EEOC enforces federal laws prohibiting employment discrimination. Further information about the EEOC is available on the agency’s web site at www.eeoc.gov.

Saturday, September 20, 2008


The Federal Contractor Program requires that any contractor receiving a contract before December 1, 2003 from the federal government in the amount of $25,000 or more, or any subcontractor receiving a contract in the amount of $25,000 or more from such a covered contractor must file a VETS-100 Report on an annual basis. In addition, any federal contractor or subcontractor is also required to take affirmative action to hire and promote qualified special disabled veterans, veterans of the Vietnam-era and any veterans who served on active duty during a war or in a campaign or expedition for which a campaign badge has been authorized. The filing deadline is September 30, 2008. Employers can file reports at the DOL’s Web site or submit a diskette in the data format specified by the DOL.

To see the Frequently Asked Questions for the VETS 100 form, including sanctions for failure to file, go to: http://www.dol.gov/vets/contractor/main.htm

To contact VETS about the form, please contact the VETS-100 office by e-mail at helpdesk@vets100.com or by phone at (301) 306-6752 for further assistance.

Bar Exam Data Debate About Privacy, Not Affirmative Action

Equal Justice Society
By Anthony Solana, Jr. and Sara Jackson

A Sept. 17 Times editorial characterizes a UCLA law professor’s request for the confidential data of state bar exam takers as a debate over affirmative action.Proponents of equal opportunity do not fear Prof. Richard Sander’s hypothesis that affirmative action puts Black law students in institutions where they are doomed to fail. Our opposition to his specific request for bar exam data is rooted in the protection of exam takers’ privacy and compliance with the law.The Times editorial dismisses these concerns as “spurious” and then provides no explanation to support that view. Instead the Times advances Sander’s and the California First Amendment Coalition’s attempts to convert this into a controversy over affirmative action because their anti-privacy arguments have no merit.For example, Sander wants exam takers’ undergraduate and law school GPA, LSAT as well as bar scores – even though individuals who take the bar cannot access these scores themselves.The State Bar cannot disclose information provided by exam applicants, irrespective of its relevance in a public policy debate, because state and federal law precludes its disclosure absent consent. One’s private records do not become public records, accessible to anyone, simply because a person applies to take a state exam and becomes part of a database.It is on these legal grounds that the State Bar Board of Governors voted unanimously to deny Sander’s request and why many prominent lawyers support the Bar’s protection of bar exam takers data. In a Nov. 7, 2007, letter to the State Bar president and chair of the Bar’s Regulations, Admissions & Discipline Committee, 28 lawyers and leaders of bar organizations, both local and statewide, wrote:“The State Bar holds the confidential information of Bar applicants in trust. It is not at liberty to divulge these applicants’ confidential information because they have a right to privacy in this information and a right to due process with respect to its disclosure.”Sander's research design solves neither the problem of consent nor the problem of privacy. Given the current demographic makeup of many of California’s top law schools, simply removing names and other identifying characteristics does not ensure the confidentiality of all applicants.At UC Berkeley and UCLA Law Schools, several classes have had 10 or fewer Black students since the adoption of Proposition 209. Small numbers of Black students in a class are typical of some private law schools as well. Under such circumstances, even “anonymized” data can still render persons easily traceable, and in such cases the law prohibits disclosure of academic records without consent. As Dean Larry Kramer of Stanford Law School stated in a letter to the State Bar on this issue last year: “[t]he use of these records envisioned by the Sander team would violate FERPA [the Family Education Rights and Privacy Act of 1974].”The disclosure of such educational records presents a serious legal question, not fairly characterized as “spurious.”And to the extent that the issue of political motivation or orthodoxy is invoked, it surely should be considered with respect to all sides. After all, Sander’s research is funded by a $1 million grant from the conservative Scaife Foundation $1.2 million grant from the Searle Freedom Trust and enjoys the full support of all of the conservatives now in control of the U.S. Civil Rights Commission, including Gail Heriot—one of the authors of Proposition 209. That Sander has a right to advocate his position is undeniable. He doesn’t have the right to acquire personal and confidential information of bar exam takers when the law mandates otherwise. Anthony Solana, Jr., is president and chairperson of For People of Color, Inc. Sara Jackson is the Equal Justice Society Judge Constance Baker Motley Civil Rights Fellow. For more information on this issue, visit www.equaljusticesociety.org.

Friday, September 19, 2008

Statement of the NAACP Legal Defense Fund on Promoting Diversity in Schools

September 16, 2008
Statement of the NAACP Legal Defense Fund on Promoting Diversity in Schools
A Response to OCR's August 28, 2008 "Dear Colleague" Letter

On August 28, 2008, the Office for Civil Rights in the U.S. Department of Education (OCR) issued a "Dear Colleague" letter providing informal guidance regarding how OCR plans to assess the use of race in assigning students to schools. OCR adopted a narrow and limited reading of the United States Supreme Court's decision in Parents Involved in Community Schools v. Seattle School Dist. No. 1, 127 S.Ct. 2738 (2007) as support for this guidance. Because LDF believes that OCR's interpretation of the decision is inaccurate in a number of respects, we now write to clarify the legal standards applicable to elementary and secondary schools. In Parents Involved, a majority of the Supreme Court justices (the four Justices who would have upheld the student assignment plans from Seattle and Louisville at issue in the case, and Justice Kennedy, who found some aspects of those plans unacceptable but approved of their purpose) recognized that school districts have compelling interests in promoting student diversity and avoiding racial isolation in elementary and secondary school settings. The majority agreed that, in Justice Kennedy's words, a school district can, in its "discretion and expertise", take affirmative steps to avoid racial isolation and to achieve a diverse student population, Parents Involved, 127 S.Ct. at 2797, and that school officials may "consider the racial makeup of schools and adopt general policies to encourage a diverse student body, one aspect of which is its racial composition." Parents Involved, 127 S.Ct. at 2792. Specifically, schools and communities may take account of race in using the following student assignment methods to promote diversity: "strategic site selection of new schools; drawing attendance zones in general recognition of the demographics of neighborhoods; allocating resources for special programs; recruiting students and faculty in a targeted fashion; and tracking enrollments, performance, and other statistics by race." Parents Involved, 127 S.Ct. at 2792. The Court also clarified what school districts cannot do: individual students cannot be assigned to school solely on the basis of their race. Instead, school districts should consider race along with other demographic factors when implementing specific student assignment methods. Parents Involved, 127 S.Ct. at 2797. Furthermore, while the Court held that the Seattle and Louisville school districts had not presented sufficient evidence that they had seriously considered "race-neutral" alternatives, there is no requirement in Parents Involved that school districts only use race-neutral means to promote the compelling interests in diversity and avoiding racial isolation in their schools. School districts should be able to demonstrate that they seriously considered workable race-neutral alternatives, but need not exhaust every possibility. As Justice Kennedy recognized, "[t]his Nation has a moral and ethical obligation to fulfill its historic commitment to creating an integrated society that ensures equal opportunity for all of its children." Parents Involved, 127 S.Ct. at 2797. Schools and communities nationwide therefore can and should continue to take steps to promote a high quality, inclusive education for all children and to address the pervasive harms of continued racial isolation in schools. The NAACP Legal Defense and Educational Fund is America's legal counsel on issues of race. LDF pursues racial justice to move our nation toward a society that fulfills the promise of equality for all Americans. Following the Supreme Court's Parents Involved ruling, LDF issued Still Looking to the Future: Voluntary K-12 School Integration, a Manual for educators, parents and advocates that provides comprehensive information about what we can and should do to promote high quality, inclusive schools in our communities. Click on the link under Publications in the right hand column to access the Manual. Other related resources are also located on this website. http://www.naacpldf.org/content.aspx?article=1317

Freedom Riders experience joyous, triumphant reunion

September 19, 2008

TSU gave honorary degrees Thursday to 14 Freedom Riders, former students who put their lives on the line in 1961 to protest racial segregation and paid the price when they were thrown in jail and expelled from school.
It was a joyous day for the 10 living Freedom Riders and the family members representing the deceased.
"I grew up on this campus," said Pauline Knight-Ofosu, an honorary degree recipient. "I grew up with an appreciation of the arts. ... At the time that I grew up, this might have been one of the few places that we could go and we could appreciate the arts and not be in a segregated area.
"All of this is just so fantastic. I don't know how I can stand it," she said.
When the ceremony was over, the reunion complete, they swayed to Tennessee State University's alma mater.
"Alma Mater, how we love thee, love thy white and blue," the former students sang of the university that once exiled them for their acts of courage and sacrifice.
The Freedom Riders rode buses through the volatile heart of the Jim Crow South to protest segregation in interstate transportation. A few months later, their actions caused President John F. Kennedy's administration to enforce earlier Supreme Court rulings banning segregation along America's bus and train lines.
TSU President Melvin Johnson said the students' "extraordinary achievements" were worthy of the belated recognition, which the Tennessee Board of Regents initially refused to grant.
"These degrees serve to remind this generation of a time when young people were willing to risk their reputations, careers, freedom and lives for a higher cause," said Johnson, who lobbied for the awards.
The Board of Regents, which oversees TSU, bowed to widespread criticism and reversed itself a few weeks after its initial decision last spring. Kwame Leo Lillard, a TSU graduate and former Metro councilman who helped organize fellow students' participation in the Freedom Rides, gave the board credit for coming around. [To read the entire story, go to: http://www.tennessean.com/apps/pbcs.dll/article?AID=/20080919/NEWS01/809190409 ]

Investigators: Flaws in how U of I handled case

Des Moines Register
September 18, 2008

Coralville — An independent investigator's report found the University of Iowa failed to adequately protect the alleged victim of a sexual assault by athletes and detailed substantial flaws with the school's behavior, an attorney told the Iowa Board of Regents this afternoon."The university's response was simply not adequate," said James Sears Bryant, who led a legal team from the Stolar Partnership, a firm based in St. Louis and Dallas, that was charged with investigating the university's reaction to an incident involving two former football players in October, 2007.
Two former U of I football players, Abe Satterfield and Cedric Everson, have been charged with sex abuse in connection with the alleged assault at Hillcrest Residence Hall on Oct. 14. Cedric Everson, 19, and Abe Satterfield, 20, are accused of sexually assaulting a female student-athlete in an unoccupied dorm room. They have pleaded not guilty and are scheduled for trial Nov. 3.
Among the findings in today's report, which discovered flaws in the university's administration proceeding, was the alleged victim was harassed by student-athletes at the school that included physical threats and shouts.Although the investigators found significant problems there was no evidenceof an attempted cover-up, Bryant said.The university needs to address the problems with the process, Bryant said.Among the other criticisms: University officials did not turn over documents to the Board of Regents during the investigation following the event, the school did not provide adequate counseling support for the student when the victim was interviewed by university officials, and university administrators in some cases failed to act together because of territorial disputes. [To view the entire story, go to: http://www.desmoinesregister.com/apps/pbcs.dll/article?AID=/20080918/NEWS/80918025/0/NEWS09 ]

Guidance or Spin on Affirmative Action Rulings?

Inside Higher Ed
September 19, 2008

More than five years ago, the U.S. Supreme Court handed down two landmark decisions about the consideration of race in college admissions decisions — permitting race to be considered, but only in some circumstances.
Citing “numerous inquiries,” the U.S. Education Department’s Office for Civil Rights recently issued a “Dear Colleague” letter to colleges, outlining its interpretations of the rulings. Calling systems that rely on race “highly suspect,” the department draws attention to the limits on the consideration of race. While everyone agrees that that the Supreme Court did set limits, the letter is being criticized in some quarters as designed to discourage colleges from legal and educationally necessary use of affirmative action.
OCR interpretations of the state of the law are important because the agency investigates complaints from people who believed they have suffered illegal discrimination in education. Many times colleges will settle complaints with OCR, even saying that they disagree with the agency, to avoid a protracted fight with the agency. On the other hand, the Bush administration is in a lame duck stage that gives colleges more leeway.
The OCR’s new letter and the controversy over it concerns what everyone agrees was a “yes, but…” answer from the Supreme Court on the legality of affirmative action. While the Supreme Court absolutely barred quotas (as it had previously) and affirmed that race and ethnicity could be considered, it is in the limitations that the Supreme Court set that the legal fights continue. Generally, the Supreme Court said that colleges needed to consider applicants — minority and white alike — as individuals, going through the same admissions system, and that there are broad reasons to pursue diversity.
After the Supreme Court decisions came down, many colleges adjusted their admissions policies, with systems that gave points for minority status replaced with programs that involved more individual consideration of applicants. Other colleges added essays or eliminated the use of standardized test scores.
In its letter to colleges, OCR reminded them that they “bear the burden of providing sufficient detail” about programs so the agency can judge their legality. The agency then described the “parameters” it would use in evaluating the consideration of race in admissions:
“Use of race must be essential to an institution’s mission and stated goals.”
“The diversity sought by the postsecondary institution must be broader than mere racial diversity.”
“Providing individualized consideration is paramount and there must be no undue burden on other-race applicants.”
“Before using race, there must be serious good faith consideration of workable race-neutral alternatives.”
“Periodic reviews are necessary and the use of race must have a logical end point.”
Taking issue with the letter on Thursday was the NAACP Legal Defense Fund, which noted that the legal standards were set by the Supreme Court five years ago, and raised questions about why this guidance would be arriving now. “There is no reason for such clarification at this time,” the Legal Defense Fund said in a statement. “Rather, it seems that more than five years after those decisions, OCR is issuing this letter to further its efforts to subvert and give unnecessary pause to higher education institutions that are pursuing a racially diverse student population in a constitutional manner.” [To read the entire story, go to: http://www.insidehighered.com/news/2008/09/19/ocr ]

AAAA NOTE: The OCR Guidance Letter is printed in its entirety on this blog. See below.

The Use of Race in Postsecondary Student Admissions

OCR Guidance: The Use of Race in Postsecondary Student Admissions
US. Department of Education
Office for Civil Rights

The Office for Civil Rights in the U.S. Department of Education issues this guidance to provide postsecondary institutions with information on how OCR assesses the use of race in admissions consistent with Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d (Title VI). This guidance sets out the applicable Title VI principles, including pertinent standards enunciated by the U.S. Supreme Court in the past five years.

This guidance represents the Department’s current thinking on this topic. It does not create or confer any rights for or on any person. This guidance does not impose any requirements beyond those required under applicable law and regulations.
If you are interested in commenting on this guidance, please email us your comment at OCR@ed.gov or write to us at the following address: Assistant Secretary for Civil Rights, 400 Maryland Avenue, SW, Potomac Center Plaza, Washington, D.C. 20202-1100.
AUG 28 2008

Dear Colleague:
I am writing to clarify how the Office for Civil Rights (OCR) in the United States Department of Education evaluates whether the use of race in admissions by a postsecondary institution is consistent with Title VI of the Civil Rights Act of 1964 (hereinafter “Title VI”). OCR is responsible for enforcing Title VI, which prohibits discrimination based on race, color, or national origin by recipients of Federal financial assistance, including public, and most private, postsecondary institutions.
OCR has received numerous inquiries, from postsecondary institutions, individuals and private organizations, about the impact of the Supreme Court’s 2003 decisions in Gratz v. Bollinger, 539 U.S. 244 (2003) (“Gratz”), and Grutter v. Bollinger, 539 U.S. 306, (2003) (“Grutter”). In Grutter v. Bollinger, 539 U.S. 306 (2003), the Supreme Court (hereinafter “the Court”) concluded, “student body diversity is a compelling state interest that can justify the use of race in university admissions.” The Court therefore found lawful the way that the Law School at the University of Michigan had sought to achieve diversity. In contrast, the Court found the use of race in the related case of Gratz v. Bollinger, 539 U.S. 244 (2003), to be unlawful. In Gratz, which involved the undergraduate college of the University of Michigan, the Court found unlawful the way the undergraduate school had made race “a decisive factor for virtually every minimally qualified underrepresented minority applicant.” Id. at 274. The undergraduate school had failed to consider “each applicant's individualized qualifications, including the contribution each individual's race or ethnic identity will make to the diversity of the student body, taking into account diversity within and among all racial and ethnic groups.” Id. at 277.
The Court’s response to the different approaches chosen by the Law School and undergraduate college provides broad parameters to guide postsecondary institutions through the constitutional and Title VI issues that arise if race (as well as color or national origin) is used in admissions. Specifically, the Court applies “strict scrutiny” to admissions policies in order to ensure that burdens placed on individuals because of their race are narrowly tailored to serve a compelling governmental interest.
Consistent with these decisions, OCR’s policy continues to be that racial classifications in admissions policies are impermissible unless they are “narrowly tailored” to meet a “compelling governmental interest” such as the remediation of past discrimination or, in the context of higher education, to achieve appropriate student body diversity. Due to their highly suspect nature, racial classifications will only be permitted if there exists “the most exact connection between justification and classification.” Id. at 270 (quoting Fullilove v. Klutznick, 448 U.S. 448, 537, 65 L. Ed. 2d 902, 100 S. Ct. 2758 (1980) (Stevens, J., dissenting))
As a result, if a postsecondary institution seeks to use racial classifications in admissions, it will bear the burden of providing sufficient detail about its process to enable OCR to determine whether the institution is complying with Title VI. Under the Fourteenth Amendment to the U.S. Constitution, a public educational institution is the government actor that must be able to justify its decision to use racial classifications. Both public and private institutions receiving Federal financial assistance are required under Title VI to be able to justify these decisions. The Title VI regulations require recipients to keep records and to submit “timely, complete and accurate compliance reports” when such a report is necessary to enable OCR to ascertain whether the recipient is in compliance with the Title VI regulations, 34 C.F.R. § 100.6(b).
When developing admissions policies, postsecondary institutions must comply with the constitutional principles of equal protection. OCR is available to provide more detailed technical assistance to individual postsecondary institutions on a case-by-case basis.
The parameters outlined below describe factors that have been and will continue to be used by OCR in assessing whether the particular use of race in admissions by a postsecondary institution receiving Federal financial assistance is permissible. OCR will apply these parameters when undertaking Title VI investigations and in OCR’s other applicable enforcement activities:
Use of race must be essential to an institution’s mission and stated goals;
The diversity sought by the postsecondary institution must be broader than mere racial diversity;
Quotas are impermissible;
Providing individualized consideration is paramount and there must be no undue burden on other-race applicants;
Before using race, there must be serious good faith consideration of workable race-neutral alternatives; and
Periodic reviews are necessary and the use of race must have a logical end point.
I look forward to continuing our work together to ensure equal access to education and to promote educational excellence throughout the nation. Thank you for your efforts on behalf of America’s students.

Stephanie J. MonroeAssistant Secretaryfor Civil Rights

Wednesday, September 17, 2008

Connerly Cashes In

The American Conservative
The anti-preferences activist gets rich off of affirmative action.
By Michael Brendan Dougherty

This was supposed to be a banner year for Ward Connerly, the former University of California regent and the Right’s most visible anti-affirmative-action activist. His 2000 biography, Creating Equal: My Fight Against Racial Preferences, was re-released in February. His latest book, Lessons From My Uncle James, was set to hit shelves this summer. More significantly, he was to be the driving force behind a series of ballot initiatives that would have forbidden state governments from “grant[ing] preferential treatment to any group or individual on the basis of race, sex, color, ethnicity or national origin in areas of public contracting, public education, or public employment.” He marketed this effort as Super Tuesday for Equal Rights.
George Will gave his imprimatur to Connerly and his mission in a Washington Post column: “Will the superstitions surrounding race ever fade away? Not before governance is cleansed of the sort of race-based policies opposed by Connerly, who intimately knows the increasing absurdity of racial classifications and the folly of government preferences based on them.”
But Connerly’s plans are unraveling. His biography is absent from most stores and barely registered in conservative book clubs. His second book is mysteriously delayed. His ballot ambitions were scaled back, first from 10 states to five. Then legal challenges and organized opposition winnowed the tally down to just two.
This is unfortunate because anti-affirmative-action ballot measures usually pass when put to a vote. Connerly would know. He and the nonprofit organizations he founded helped three such measures pass—in California in 1996, Washington in 1998, and Michigan in 2006.
But don’t spend too much sympathy on Ward Connerly. The Right’s point man on affirmative action doesn’t need political successes to be a success. While his plans sputter and his former achievements are overturned, Connerly is still being handsomely rewarded. Once he received favored status from the conservative movement, his future was guaranteed. As an activist, Connerly has made millions opposing affirmative action. As a businessman and consultant, he has also made hundreds of thousands in large part because of it. [To read the entire article, go to: http://www.amconmag.com/article/2008/sep/22/00016/ ]

Perspectives: Keeping the Affirmative Action Debate in Context

Diverse Issues in Higher Education
by María Ledesma
Sep 17, 2008, 00:14

We stand on the cusp of an epic moment: the chance to vote into office the first Black president in the history of the United States. This historic event is set to potentially redefine and reframe the manner in which we speak about, and handle, race in America. However, as we embark down this never before traveled path, it is critical that we keep in mind the historic events that have enabled someone like Sen. Barack Obama to ascend to the highest levels of politics.
Some have already begun to argue that, as evidenced by the senator’s success, the time has come to dismantle affirmative action programs. Anti-affirmative action proponents further argue the fact that a Black man stands one step away from the presidency of the United States is proof enough that the time has come to end all affirmative action programs. A historical accounting will tell us otherwise. A historical accounting would posit that Sen. Obama’s ascendancy into politics has been, in part, because of, not in spite of, affirmative action programs.
However, most discussions and arguments about affirmative action happen within a historical vacuum. Close analysis reveals that affirmative action has been decoupled from its historical roots, resulting in an ahistorical and acontextual framing of the policy that misinforms the general public as well as scholars and political pundits. Unfortunately, what results is a popular narrative that defines affirmative action around sound bites. This ahistorical and acontextual narrative frames the policy as nothing more than “out-dated” and “preference-laden” “quota systems.” These buzz words not only sensationalize and corrupt sincere discussions around the policy, they prejudice and completely ignore the important historical events that have helped usher in social justice programs like affirmative action. [To view the entire opinion, go to: http://diverseeducation.com/artman/publish/article_11689.shtml ]

Tuesday, September 16, 2008

American Constitution Society Announces Issue Brief "The State-by-State Assault on Equal Opportunity"

ACS is pleased to distribute an Issue Brief by Melissa Hart, Associate Professor of Law at the University of Colorado Law School, entitled The State-by-State Assault on Equal Opportunity.In this Issue Brief, Professor Hart describes the effort to place measures on the ballot in states around the country to eliminate all forms of affirmative action, the arguments being made in support of these initiatives, and the impact they have had in the states where they have been adopted. Professor Hart argues that affirmative action programs help foster true equality and ensure civil rights for women and people of color, by removing down barriers to opportunity and giving long-excluded communities a fair chance to achieve their full potential. Nonetheless, according to Professor Hart, a small group of well-funded opponents of equal opportunity, working state-by-state to make affirmative action illegal, have succeeded in three states so far (California, Washington and Michigan) and are likely to have their initiatives on the ballot this November in Colorado and Nebraska.Professor Hart argues that the proponents of these measures use deceptive language and foster confusion over its meaning, that they rely on false premises and a notion of formal equality that ignores the discrimination that persists in our society, and that where these measures have been adopted, they have had very harmful consequences - most notably, reducing diversity on university campuses. She further suggests that these measures and the debates they spark change the discourse on equal opportunity in damaging ways going beyond any single state's boundaries. Objecting to the idea that proponents of equal opportunity should "surrender," however, she notes that efforts in several states to fight back against these initiatives have been successful, most recently in Arizona, where last month the Secretary of State ruled that an insufficient number of valid signatures had been gathered for placement of the measure on that state's ballot. Professor Hart concludes that "with concerted political and educational efforts, supporters of equal opportunity can prevail against this misleading and destructive campaign. It will require focus and a sense of urgency, but success is eminently possible - and well worth the effort."The American Constitution Society for Law and Policy is one of the nation's leading progressive legal organizations. Founded in 2001, ACS is a rapidly growing network of lawyers, law students, scholars, judges, policymakers and other concerned individuals. Our mission is to ensure that fundamental principles of human dignity, individual rights and liberties, genuine equality, and access to justice enjoy their rightful, central place in American law. For more information about the organization, which has established student chapters at over 160 law schools around the country and lawyer chapters in 30 cities, please visit, www.ACSLaw.org.The views of the authors are their own and should not be attributed to ACS. This issue brief is available online at http://www.acslaw.org/node/7123.

Contributed by: Marshall Rose, AAAA Task Force on Equity in the States

Saginaw Valley State University overcomes Proposal 2, attracts more minority freshmen

by Andy Hoag The Saginaw News
Saturday September 13, 2008, 4:42 AM

Michigan's ban on affirmative action has hurt minority recruiting at some colleges, but Saginaw Valley State University isn't among them.

By using focused recruiting and special scholarships as tools, SVSU has increased its share of under-represented minorities -- blacks, Hispanics and American Indians -- by 4.25 percent this fall, to 245 freshmen from 235.This is the first full freshman class since voters passed Proposal 2 in November 2006, banning preferential treatment based on race. Some minorities already had received scholarships for fall 2007 before the proposal's passage.
It has hampered colleges such as Grand Valley State University in Allendale, where the number of under-represented minorities is down 30 percent this fall.
At Ann Arbor-based University of Michigan, which defended its affirmative action policy all the way to the U.S. Supreme Court, enrollment of minority students dropped to 10.47 percent this year from 10.85 percent last year.
While accepting students based on ethnicity is illegal in Michigan, encouraging diversity and actively searching for it is not, U-M officials say.
That's what SVSU -- it has never had separate admissions criteria based on race -- has done, officials said.
"We make sure our admissions representatives are visiting high schools that have a large percentage of minority students," SVSU spokesman J.J. Boehm said.
SVSU also has relied on other scholarships -- private ones, which Proposal 2 does not affect -- to keep up minority freshmen enrollment. [To read the entire story, go to: http://www.mlive.com/saginawnews/news/index.ssf/2008/09/saginaw_valley_state_universit_9.html ]

When will Affirmative Action, Equity, and Diversity Initiatives as Tools for Social Justice become Unnecessary,Unwarranted, and Anachronistic?

In Motion Magazine
by Jose J. Soto
Lincoln, Nebraska
April 5, 2008

Efforts to eliminate affirmative action as a tool for attaining equal opportunity and social justice are current and active in five states (Arizona, Colorado, Missouri, Nebraska, and Oklahoma). The time will come when affirmative action should be eliminated, and when that time comes I will ardently champion its elimination. I believe, however, that time is not yet here.
In Grutter v. Bollinger [539 U.S. 306 (2003)] the U.S. Supreme Court opined, through Justice Sandra Day O'Connor, that attaining the educational benefits that flow from a diverse student body was a sufficiently compelling interest to warrant taking race into account in making admissions decisions to higher education. The majority opinion in Grutter stated that "(w)e expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today."
Ward Connerly and others ... at the University of Nebraska-Lincoln, in Lincoln, and throughout Nebraska ... seem to feel that administrative tools and efforts that take race into account have served their purpose and no longer have a role in advancing our quest for inclusion, representation, and social justice. From their perspective, the "When?" is now.
I beg to differ .... the Connerly-inspired efforts currently being advanced in Nebraska and 4 other states are wholly premature.
But, I do believe, and am hopeful, there will come a time when we will not need these mechanisms and efforts to exact social justice. From my experience and observation, that day is not today, nor will it be in April 2009, or 2010, maybe not even by Justice O’Connor's "magic" date of 2028. However, the day will come when we will know that we've "arrived." And when, you might ask, will that be? How will we know?
Let me share my list of ten indicators that will lead me to champion the elimination of affirmative action, equity, and diversity efforts in higher education, business and industry, and government.
1) When women and minorities have attained their proportionate share of leadership and decision-making roles in our institutions of higher education, in business and industry, and in government. [To see the entire article, go to: http://www.inmotionmagazine.com/opin/jsoto_aa_08.html ]