Thursday, October 25, 2012

In Support of Affirmative Action, Swarthmore Files Amicus Brief for Supreme Court Case

Sarah Coe-Odess, student writer 
October 25, 2012

"The brief, which is 43 pages, provides three main arguments. The first concerns educational institutions’ interest in a diverse student body and their subsequent need to take diversity into account in admissions. The next argument claims that schools benefit in many ways by having a diverse student body and that the Supreme Court should recognize and protect these benefits. Lastly, the brief discusses that a ruling that declared affirmative action unconstitutional would deprive academic institutions of necessary academic freedom and autonomy."

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Wednesday, October 24, 2012

Affirmative Action still a necessity for racial equality

Fourth Estate
Tyler Groves, Opinion Writer
October 23, 2012
Filed under Opinion

Four years ago, Texas resident Abigail Fisher got the disappointment of her 18-year-old life. After graduating in the top 12 percent of her high school class, her application for the University of Texas at Austin was rejected. Instead of walking away, though, Fisher took legal action, claiming UT passed over her application for less-qualified minority students so the college could keep up with its Affirmative Action laws.

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Two important new cases uphold employers' defenses to claims of sexual harassment

Fox Rothschild LLP
  • USA    October 18 2012
    The Supreme Court ruled in Burlington Industries v. Ellerth, 524 U.S. 742 (1998), and Faragher v. Boca Raton, 524 U.S. 775 (1998) that an employer may assert as an affirmative defense to claims of sexual harassment that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior and that the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by employer or to avoid harm otherwise. Two new court decisions illustrate exactly what this means.

    A non-employee doctor as well as a vulgar parrot can render a hospital liable for sexual harassment

    Fox Rothschild LLP
  • USA    October 19 2012
    Last year we asked whether a vulgar parrot could create a hostile work environment. This arose from a real case where a parrot who was kept by a patient in an expensive long term care facility repeatedly shouted sexual imprecations to the attending female nurse, who was none too happy about it. She complained to her supervisor about the hostile work environment but she was laughed off. She sued for sexual harassment. and won.
    We asked the question: Can the parrot be liable for sexual harassment?
    The better question, we noted, should be: Can an employer be liable for creating a hostile work environment if it permits sexual comments to be made to an offended employee, whether by a parrot, a co-worker, or a mail deliverer?

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    Tuesday, October 23, 2012

    Assessing the Progress of Women Faculty at Yale University

    Women in Academia
    Posted on Oct 16, 2012

    A new report has found that women make up 34 percent of the tenure and tenure-track faculty at Yale University in New Haven, Connecticut. Women are 24 percent of the tenured faculty. This has improved from 17 percent a decade ago.
    The survey found that 30 percent of the tenured faculty in the humanities are women and women make up 25 percent of the tenured faculty in the social sciences.

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    Supreme Court to Hear Title VII, Class-Action Cases in 2012-13 Term

    Workforce Week
  • By Matthew Heller
  • Published: October 18, 2012

  • There don't appear to be any issues approaching the magnitude of June's landmark ruling on health care reform on the U.S. Supreme Court's employment law docket for its 2012-13 term, which got under way in October. But the high court will consider cases that deal with weighty Title VII and class-action questions. And, says Garry Mathiason, who is chairman of the board at law firm Littler Mendelson in San Francisco, "There are always some surprises from the Supreme Court."

    Full Story:

    Thursday, October 18, 2012

    Affirmative Action Headed for the Dustbin of History

    The Huffington Post
    Steve Nelson
    Posted: 10/17/2012 6:48 pm

    Poor Abigail Fisher. She had her cake and wanted to eat it too. The Supreme Court appears ready to hand her a fork.
    Fisher is the plaintiff in the affirmative action case considered by the Court on Wednesday. The young white woman, a recent graduate of Louisiana State University, filed the lawsuit now being considered because, she claims, she was unfairly denied admission to the University of Texas. One might argue whether the distinction between these two institutions is so great that Fisher had standing to bring the case at all.

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    Freethought San Marcos: How Mitt Romney made affirmative action work

    Free Thought San Marcos
    October 18, 2012

    Freethought San Marcos: A column
    Most people seemed to focus on the strangeness of Romney-speak after Mitt Romney talked about “binder of women” in the second presidential debate held on October 16. If you missed the debate, here’s what happened.
    The candidates were asked a question about inequalities in the workplace and equal pay for women. Obama discussed his support for the Lilly Ledbetter Fair Pay Act of 2009, which passed, with 36 Republicans in the Senate voting against it, in response to a 2007 Supreme Court decision which held that the 180-day statute of limitations on equal-pay lawsuits begins on the date the pay was originally agreed upon, and does not begin again with each new paycheck that contains the discriminatory pay. That decision had prevented Lilly Ledbetter from recovering for unequal pay because she did not learn that she was receiving unequal pay until many years after she was hired.

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    Tuesday, October 16, 2012

    VETS 100 Deadline Extended

    U.S. Department of Labor

    Office of Veterans Employment and Training Services

    Important Information: Filing Deadline Extension

    The filing deadline for VETS100 and/or 100A report(s) in the 2012 cycle was extended to October 31, 2012.
    All paper reports and electronic files received at the Service Desk by October 31st will be included as part of the 2012 filing cycle and will not be considered late.

    A question of equality

    Oklahoma Gazette

    A state question on next month’s ballot seeks to ban affirmative action in the public sector.

    Rachel CurtisOctober 16th, 2012

    A state question appearing on the Nov. 6 ballot would effectively end affirmative action for women and racial minorities in the public sector statewide.
    Tamya Cox
    Photo: Mark Hancock
    Its proponents say the measure will advance equal opportunity.

    Full Story:

    Rousseff Backs Affirmative Action in Government (Brazil)

    Americas Quarterly

    October 16, 2012

    Brazilian President Dilma Rousseff plans to support affirmative action quotas that will increase the number of Afro-Brazilians in government positions, an anonymous source close to the Executive told L’Agence France-Presse on Monday. While the percentages have not been defined, the quota system would apply to all new government contracts and employee openings.

    Full Story:

    Brazil Embraces Affirmative Action With New Law to Boost Racial Diversity at Universities

    PRI's The World
    While the US Supreme Court reviews the constitutionality of considering race in college admissions, Brazil is moving ahead on affirmative action.
    In August, Brazil’s president signed a law setting aside half of public university seats for poor or nonwhite students.
    John Otis reports from Brazil on what people at the universities are saying about that.

    Full Story and Audio:

    Don't Be Fooled, the Attack is on Diversity and Inclusion

    The Huffington Post
    Posted: 10/16/2012 5:10 pm

    The challenge in the Fisher v. University of Texas case is about more than whether the University of Texas (and others like it) should be permitted to factor race along with numerous other aspects of an applicant's biography when attempting to create a diverse learning environment. It is an attack on diversity and inclusion as a value.

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    Should the Supreme Court prohibit racial preferences in university admissions?

    CQ Researcher Report

    AAAA's Shirley Wilcher writes the "con" side of the question.  For a copy of the report, email us at or purchase it online at:

    Supreme Court: If affirmative action is banned, what happens at colleges?

    Christian Science Monitor
    Nine states have tried to achieve campus diversity through other means, with mixed results. On Wednesday, the Supreme Court takes up an affirmative action case from the University of Texas at Austin.
    By , Staff writer / October 9, 2012

    In this Thursday, Sept. 27, photo, students walk through the University of Texas at Austin campus in Austin, Texas. This giant flagship campus - once so slow to integrate - is now awash in color, among the most diverse the country if not the world.
    Eric Gay/AP


    The Christian Science Monitor
    That’s one key question the US Supreme Court may consider as it once again takes up the issue of affirmative action in higher education, in the case of Fisher v. University of Texas at Austin on Wednesday. Depending on how the high court rules, it could lead to public colleges and universities across the country dropping the consideration of race in admissions decisions....

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    Affirmative Action: Race vs. Class

    The Huffington Post
    Alessandra Bradley-Burns
    Posted: 10/15/2012 3:26 pm

    I absolutely earned my admission there and earned my right to stay once I was there, but I have no doubt that my acceptance to Georgetown's School of Foreign Service and Georgetown's School of Medicine were directly and indirectly impacted by Affirmative Action and its legacy. I have personally benefited from Affirmative Action.
    I grew up in one of the United States' many non-traditional communities (NTCs). Our micro-community was comprised of orthodox Jewish families, families whose history was from other lands, farmlands and communes. We were people of color, people who learned English as a second or third or fourth language.

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    Melissa Harris-Perry: Clarence Thomas Is 'Wrong' On Affirmative Action (VIDEO)

    Huffington Post
    Posted: Updated: 10/14/2012 11:12 pm EDT

    Melissa Harris-Perry wrote an open letter to Justice Clarence Thomas and read the note aloud on her Saturday MSNBC show.
    Earlier this week, the Supreme Court heard oral arguments for the affirmative action case brought about by 22-year-old Abigail Fisher, who claims that her 2008 rejection from the University of Texas was due to her race.
    Harris-Perry said that the case inspired her to write a note to Justice Thomas. The MSNBC host recalled Thomas' position on affirmative action, describing how the Supreme Court justice placed a 15-cent price tag from a cigar box on his Yale law school diploma. Quoting Thomas' book, Harris-Perry said he put the price tag on his diploma because he felt "that affirmative action made his law degree worthless."

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    Blacks Don't Like Affirmative Action, Either

    The Root
    | Posted: October 15, 2012 at 12:00 AM

    Affirmative action is under fire again. While some think that the strategy doesn't level the playing field in America, CNN columnist L.Z. Granderson writes that blacks actually don't like affirmative action, either, because it gives outsiders the opportunity to assume jobs were gained because of earmarks rather than talent.

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    Southern Methodist University to Review Sexual Assault Polices and Procedures

    Women in Academia
    Posted on Oct 02, 2012

    R. Gerald Turner, president of Southern Methodist University in Dallas, has established a task force to examine the university’s procedures for dealing with sexual assaults. In an email to the campus community, President Turner said that the Task Force on Sexual Misconduct Policies and Procedures will “examine SMU’s procedures and policies in comparison with benchmark practices to determine if any updates or changes are needed.”

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    The Gender Gap in Graduate Enrollments

    Women in Academia
    Posted on Oct 02, 2012

    The Council of Graduate Schools has released a new report entitled Graduate Enrollment and Degrees, 2001-2011. The report finds that in the 2010-11 academic year there were 254,341 women who were first-time enrollees in U.S. graduate schools. Women were 57.6 percent of all first-time graduate students. Women were 58.9 percent of all first-time enrollments in master’s degree programs and 50.7 percent of all first-time enrollments in doctoral programs.

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    Affirmative Action Enforcement: The Federal Contract Compliance Program

                                        HUBERT HUMPHREY INSTITUTE

                                             UNIVERSITY OF MINNESOTA

                                                   October 12, 2012

                      Dr. Bernard E. Anderson, the Wharton School, University of Pennsylvania
           Affirmative Action Enforcement:  The Federal Contract Compliance Program
        In the year of our Lord 2012, this country continues to be afflicted by racial inequality in American economic life.  Black unemployment persistently remains at twice the unemployment rate of white workers, black families continue to make do with $6 for every $10 enjoyed by white families, and black wealth, measured by net worth, hovers in the neighborhood of $5000, compared with $116 thousand for white families.

       These egregious economic disparities are rooted in past and present labor market discrimination. The quest to overcome employment discrimination requires the use of many tools; affirmative action is one of the most important, and effective.
    Government purchasing power is the foundation for federal government anti-discrimination, affirmative action policy. The idea to use government purchasing power to fight discrimination was first introduced in 1941 by A. Philip Randolph, the great labor and civil rights leader, when he threatened to lead a march on Washington in opposition to discrimination in the defense industries.
        Mr. Randolph met with President Franklin D. Roosevelt and explained why Presidential action was necessary to assure black participation in the war effort.  When the President concluded that he could not sweet talk Mr. Randolph to call off the march by appealing to his patriotism in a time of war, he issued Executive Order 8802, which established the Fair Employment Practices Committee (FEPC).  The Committee, with authority limited to defense industries, had only investigatory power, and was limited to moral suasion to pierce the veil of virulent discrimination that was rampant at that time.
      President Roosevelt’s action in creating the FEPC set in motion a process that saw each succeeding chief executive issue a similar order to address employment discrimination among government contractors:
    ·         President Truman created the Committee on government contracts, and broadened coverage to all industries;
    ·         President Eisenhower continued the Truman Committee, and appointed Vice President Richard Nixon chairman                             
    ·         In 1961, President John F. Kennedy issued executive order 10925, which created the President’s Committee on Equal Employment Opportunity (OFCCP), and named Vice President Lyndon B. Johnson chairman.
    The Kennedy executive order was the first to introduce the concept of affirmative action. Previously, the enforcement policy only exhorted employers to practice nondiscrimination, and to act in their self-interest to hire “qualified Negroes”.  Affirmative action went beyond nondiscrimination, and called on employers to take specific steps to reach out, recruit, and hire workers defined as members of the “protected class.”
       The concept of affirmative action is rooted in equity, a concept pioneered by the British Court of Chancery.  In the American context, affirmative action is defined as public or private action, or programs, which provide, or seek to provide opportunities or benefits to persons on the basis of their membership in a specific group.  The Kennedy order focused on employment or employment related benefits, for persons identified by race, national origin, or religion
       In 1965, President Lyndon B. Johnson issued Executive Order 11246, the legal enforcement authority that remains in place today. The Johnson order shifted enforcement authority from the White House to the Department of labor, and created the Office of Federal Contract Compliance Programs (OFCCP).  The new agency was given authority to promulgate regulations that define affirmative action, and specify                                                                                                                              -3-
    employer practices that are intended to assure equal employment opportunity in all phases of the employment process.  Initially, that included goals and timetables for noncompliant contractors.
       The context of President Johnson’s order- - - an order that included stronger enforcement authority than previous orders, is important. There’s a causal relationship between the urban unrest in 1964-68 and the implementation of affirmative action employment policy.  In June 1964, President Johnson was the commencement speaker at Howard University.  In discussing the need for special efforts to correct for past discrimination, he said “You can’t keep a man in chains for 400 years, remove the chains, take him to the starting line and tell him to run the race, and think you are being fair”.
        There was much unrest associated with civil rights demonstrations at that time.  Various studies on the protests of the 60s, the black power movement, the Kerner Commission Report, and other investigations all recognized the economic plight of the black community as a major cause of the unrest.  The uneven distribution of jobs, the long exclusion of black workers from many occupations and some industries, not only in the segregated South but in other regions of the country generated racial economic inequality that showed no tendency to change without government intervention. The Civil Rights Act of 1964 was enacted to address these conditions.
       It is important to recall that the August, 1963 March on Washington, which brought a quarter million people to the Washington Mall, was a march for jobs and freedom.  The juxtaposition of those words was no accident; they reflected the view of A. Philip Randolph, the father of the march (some 22 years delayed) that there can be no freedom or civil tranquility in the absence of economic opportunity and economic security.
        In 1969, one of the early affirmative action enforcement initiatives was led by Arthur Fletcher, the black Republican who was appointed by President Nixon to Assistant Secretary of Labor for Employment Standards Administration. Fletcher used the Johnson executive order to attack discrimination in the construction industry.  After tense negotiations with local building trades unions, he forged an agreement named “The Philadelphia Plan”, which set specific goals and timetables for hiring minority workers. Similar agreements called “Home Town Plans” were negotiated in other cities.
       The social and political circumstances underlying the agreements were compelling.  The Johnson administration had introduced a War on Poverty that included major funding to revitalize cities through urban renewal. The black unemployment rate, for youth and adults, had long been twice the rate for white workers.  Yet, the black
    unemployed watched while white construction workers in well-paying jobs proceeded to build housing, schools, and other facilities in their neighborhood. That sparked major, often violent, demonstrations that could only be contained by breaking the barrier that barred black workers from employment in the construction industry.
       The organization of the construction industry labor market poses unique difficulties for affirmative action enforcement.  The construction industry labor market is a referral system in which the union determines the employer’s workforce.  To get a job, the worker must be a member of the union; and as a private organization, the union has the right to determine its membership. That undergirds discriminatory practices.
      The route to employment in the commercial construction industry is through apprenticeship programs.  From the early 60s, efforts have been made to increase minority participation in apprenticeship in order to increase minority employment in the industry.  But little progress has been made, and commercial construction continues to display wide racial disparities.
        The federal contract compliance program is an important tool for assuring equal employment opportunity in American industry.  About 200 thousand business firms have federal contracts, valued at $ 10,000 or more, the definition of firms covered by the executive order. 
      Nearly one-fourth of the American workforce is employed by defense and nondefense firms with federal contracts.
        OFCCP regulations require each firm to have an affirmative action program, which includes an employer review of employment policies and practices to assure that there are no structural or institutional barriers to recruiting, hiring, evaluating, training, and promoting employees on the basis of race, gender or national origin, and that compensation systems provide equal pay for equal work.
       Employer compliance is monitored through about 4,000 contractor reviews each year. Noncompliant employers are required to change their employment practices if violations are found. Violations may result in costly penalties, including back pay. The ultimate enforcement weapon is debarment from future contract opportunities.
       The goal of affirmative action is to assure nondiscriminatory decision making in all phases of the employment process. In hiring, for example, the goal is to assure that all job applicants have an equal chance to be selected.  If the process is fair, the proportion
    of members of the protected classes who are selected from a pool of diverse applicants should reflect the diverse composition of the applicant pool.
        For example, assume that there are 100 marbles in a bowl, and all marbles have the same size, weight, and smoothness, and differ only in color.  Some marbles are black, others white, yellow, green, or red.  Now ask a blindfolded selector to pick 10 marbles from the bowl. What is the likelihood that all 10 will have the same color? The probability of that outcome is very low. The reasonable conclusion is that the selection process is flawed.
        In reviewing hiring outcomes, enforcement officials examine the hiring process to assure that the selection of new hires bears a reasonable relationship to the diversity of the pool of equally qualified applicants.  Affirmative action plans are intended to assure nondiscriminatory practices in outreach to assure a diverse applicant pool, and nondiscriminatory systems for training, performance evaluation, promotion, and compensation that treat all employees equally, regardless of differences in their immutable characteristics.
        The enforcement standards applied by the Department of Labor are influenced by legal challenges to affirmative action in other domains.  For example, United Steelworkers v. Weber (1971) a title VII case, and Fullilove v. Klutznick, a Department of Commerce minority contracting case set the framework for permissible actions a firm could take to expand minority and female employment opportunities.
      Congressional oversight also plays an important role.  In 1995, Senate Robert Dole, then Senate Majority leader, challenged the affirmative action program for federal employees. In response, President Clinton launched a government-wide review of affirmative action.  The review was led by Christopher Edley then Assistant to the President, and now Dean of the University of California Berkeley Law School; and Joseph Stiglitz, the Nobel Laureate economist, who was then Chairman of the White House Council of Economic Advisors.
        The review revealed that while there were some shortcomings in the management of affirmative action in a few agencies, the great weight of evidence showed that the federal government’s protection of EEO was greatly enhanced by affirmative action. 
      President Clinton announced his verdict on the reviews in July 1996 in a speech at the National Archives.  After summarizing the evidence on racial economic disparities, the history of slavery and segregation after Emancipation, and the adoption of the Civil Rights Act of 1964, President Clinton declared that in the matter of affirmative action, we should: “Mend it , Don’t End It”.
     Over the last two decades, two developments have framed the context for the enforcement of affirmative action by OFCCP.  The first is the decline in the use of the term affirmative action, and the emergence of the more felicitous term “diversity”.  Most Fortune 500 companies now have senior executives with the title “Director or Vice President of Diversity”, and departments that specialize in diversity management.  The focus of their concern is how to integrate employees with different backgrounds into a collaborative workforce where each can develop his or her individual talents to help maximize corporate performance.
       The emphasis on diversity management may divert attention from the implementation of policies and practices that promote hiring and equal compensation for minorities and women.    Diversity management is no substitute for affirmative action.  Employers must continue to be alert to the necessity to recruit, hire, train, and promote racial minorities and women in numbers commensurate with their presence in the applicant pool. Affirmative action does not mean quotas; quota hiring is unlawful.  But numbers are not insignificant in determining the effectiveness of affirmative action.
       The other important development is the increasing number of well-prepared minorities and women in the applicant pool seeking private sector jobs. The number of racial minority and female college graduates has grown steadily over the past two decades. Employers can no longer say that they’d like to hire a minority or female employee, but can’t find one. Thirty years of compliance assistance, coupled with sophisticated electronic information systems opened the door to efficient recruitment systems that facilitate targeting on employee groups that were overlooked in the past.  The partnership of OFCCP with enlightened employer groups, like the Industry Liaison Group, also contributes to a higher level of compliance with affirmative action.
       Progress has been made over the last four decades in widening the doors of employment opportunity for racial minorities and women in American industry.  Gone are the days when the Bell Telephone system had separate employment offices for men and women, black workers were systematically denied employment in personal contact jobs, and a straight A black college graduate seeking a job as a management intern   would be told by an employment recruiting firm that no business client would hire him because he was a Negro. 
    Affirmative action is responsible for much of the progress that eliminated those practices from the workplace.  But few who are acquainted with corporate business practices, and follow industry employment trends will argue that discrimination no longer exists.  For example, the gap in the black/white unemployment rate for college graduates narrowed
    significantly between 1977 and 2007.  But it widened noticeably after the rapid rise in layoffs in the midst of the 2007-2009 recession.  It’s important to assure that the pattern of layoff and recall during the business cycle does not reflect discriminatory decision-making. Vigorous enforcement of affirmative action can secure that outcome. Affirmative action is a sine qua non for eliminating racial inequality in American economic life.

    Seventh Circuit: ADA gives disabled employees priority for vacant positions

    Drinker Biddle & Reath LLP
  • USA
  • October 11 2012
  • A recent Seventh Circuit decision may require employers to select minimally qualified employees over far more qualified employees when filling vacant positions. In EEOC v. United Airlines, Inc., 2012 WL 3871503 (7th Cir. 2012), the Court held last month that, absent undue hardship, the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (“ADA”), requires an employer to transfer a disabled employee to a vacant position ahead of more qualified non-disabled employees.

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    Ten tips to avoid being sued for employment discrimination

    Fox Rothschild LLP
  • USA
  • October 9, 2012
  • Everyone loves lists. Although not everything is reducible to a simple list, nonetheless here is our list of ten tips (back by popular demand) to lower your risk of being sued for employment discrimination
    1. Know the basics of anti-discrimination law, both federal and in your state and city. Be familiar with what a “protected category” is, what you can and cannot ask in an interview, what constitutes harassment, what is retaliation and an “adverse action,” and what to do if an employee complains of discrimination.

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    EEOC targets extreme sexual abuse of "vulnerable" employees in recent lawsuits

    Fox Rothschild LLP
    “Harrowing,” “appalling” and “extreme abuse” were words used by EEOC lawyers regarding a series of recently filed cases targeting sexual harassment of farmworkers. It appears that the EEOC is periodically targeting different types of discrimination and different industries, and selecting particularly egregious cases to make a point to employers. Recently, for example, we noted that the EEOC was targeting the health care industry, ADA violators, as well as pregnancy discrimination.
    Now the EEOC has announced that it has filed numerous lawsuits within the last few days targeting sexual harassment, particularly of farmworkers, who are subject to an “appalling abuse of power.”

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    Retain Affirmative Action—Because It's the Morally Right Thing to Do

    The Chronicle of Higher Education
    October 8, 2012

    We have heard it before: "In America, you will go as far as your talent and work ethic will take you." This mantra has served as a guiding principle since the earliest days of our nation. It expresses the virtues of freedom, equality, and American ingenuity, and has served as the premise of the "up by the bootstraps" and rags-to-riches stories that inspire us all. It is the American Dream. Too bad it is a myth.

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    What You Need to Know About Fisher v. Texas

    The Chronicle of Higher Education
    October 16, 2012

    The U.S. Supreme Court is hearing arguments this week in Fisher v. University of Texas at Austin, a case that centers on the questions of whether and how race may be used in college-admissions decisions. Wondering what this case means for colleges? You'll find answers on this page.

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    The Education Dividend

    The Chronicle of Higher Education
    By Brink Lindsey

    A new class divide has opened up in American society over the past generation, and the main cleavage is along educational lines. Specifically, the key distinction is between the 30 percent of Americans who have a college degree and the 70 percent who don't.

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    Think Outside 'The Box'

    October 12, 2012 - 3:00am
    DENVER – Don’t check the box.
    It’s the advice that’s given to Asian-American students by friends, family members, guidance counselors, even teachers, in the college application process. “The box” in question (actually more of a circle these days) refers to the selection of “Asian” when college applications ask students how they identify themselves.
    At a session on the topic here at the National Association for College Admission Counseling’s annual meeting – a convention that brings together high school counselors with college admission directors and others involved in the field – almost all the hands in the room shot up when panelists asked the audience if they thought Asian-American students were held to a higher standard in the college admissions process.

    Read more:
    Inside Higher Ed

    Principles to promote and protect the human rights of international students

    Australian Human Rights Commission
    The Race Discrimination Commissioner, Dr Helen Szoke, launched the Principles to promote and protect the human rights of international students at the Australian International Education Conference on 4 October 2012. You can read the Commissioner's launch speech here.
    The implementation of these high-level, human rights-based Principles will enhance the safety and well-being of international students in Australia. The Race Discrimination Commissioner encourages all those working with international students to consider how these can be effectively adopted and implemented in the ongoing development of policies and services relating to international students.
    Broadly, the Principles can be used:
    • as a guide for all organisations and government agencies that provide services to international students
    • to inform the ongoing development of policies and services relating to international students, and
    • to provide international students and their representative bodies with a guide on how their human rights can be better promoted and protected, to support their advocacy with governments, service providers and other agencies.
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    The Achilles Heel of Affirmative Action

    The Chronicle of Higher Education
    October 11, 2012, 5:01 pm

    When I attended Wednesday’s Supreme Court oral argument in Fisher v. University of Texas, all eyes were on Justice Anthony Kennedy, in whose hands, most people believe, rests the fate of racial affirmative action in higher-education admissions. Four justices to Kennedy’s right appear to strongly oppose racial preferences as unconstitutional, while three to his left favor them (Justice Elena Kagan recused herself). 

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    (Richard Kahlenberg strikes again with his oft-used argument that class-based discrimination should replace race-based affirmative action...)

    'I'm Not Racist, But'

    Inside Higher Ed
    October 16, 2012 - 3:00am
    A Chinese student at Michigan State University finds his car spray-painted, the words reading "Go back home."
    Students at Ohio State University Tweet comments like “The [I]ndian next [to] me [at] the gym smells like a curry covered butt hole” and “Every Asian that walks past us in the oval wants to eat our dog.” These comments, and others, were recently reposted on a blog, OSU Haters, which aims to call attention to offensive online speech.

    Read more:
    Inside Higher Ed

    Thursday, October 11, 2012

    Justices Weigh Race as Factor at Universities

    The New York Times
    WASHINGTON — With the future of affirmative action in higher education hanging in the balance, the Supreme Court on Wednesday grappled with two basic questions, repeated by Chief Justice John G. Roberts Jr. in various forms at least a dozen times.

    How to Think About Affirmative Action Like an Economist

    The Atlantic
    Oct 10 2012, 1:46 PM ET

    Does affirmative action cheat hard-working white students? Does it hurt minorities? Does it even work? That's the high-stakes debate happening now at the Supreme Court. Here's how a stoic economist might think about it.

    If you're hoping today's affirmative action case at the Supreme Court will finally settle the issue of whether race should play a role in college admissions ... tough luck. Justice Anthony Kennedy is widely considered the swing vote this time around, so chances are we're looking at a mushy compromise decision. And that means we're also bound to keep on having the same visceral arguments about skin color and academic opportunity that have been raging in this country for half a century.

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    In Affirmative-Action Case, History of 14th Amendment Is Inconvenient

    The Daily Beast
    Oct 10, 2012 4:39 PM EDT

    Justices Scalia and Thomas trumpet the value of constitutional originalism, but only when it suits their preferred outcome. Adam Winkler reports.

    The Supreme Court heard arguments Wednesday (PDF) in a potentially landmark case that could spell the end of race-based affirmative action in higher education. The case involves a challenge to the University of Texas’s admissions policy that makes race one relevant factor—along with the usual assortment of other criteria, like SAT score, grade-point average, being a legacy, and skills such as playing football or the tuba. Abigail Fisher, a white applicant who was denied admission, claims that UT’s policy violates the 14th Amendment, which guarantees the “equal protection of the laws.”

    Ruling out race in college admissions: How far will high court go?

    The Los Angeles Times

    WASHINGTON — The Supreme Court’s conservative justices seemed inclined Wednesday to strike down a University of Texas affirmative action plan, but did not make it clear how far they might go in outlawing the use of race in admissions at all colleges and universities.
    In his opening question, Chief Justice John G. Roberts noted that applicants to the University of Texas must check a box to certify their race or ethnicity.

    Ruling out race in college admissions: How far will high court go?

    The Los Angeles Times

    WASHINGTON — The Supreme Court’s conservative justices seemed inclined Wednesday to strike down a University of Texas affirmative action plan, but did not make it clear how far they might go in outlawing the use of race in admissions at all colleges and universities.
    In his opening question, Chief Justice John G. Roberts noted that applicants to the University of Texas must check a box to certify their race or ethnicity.

    Former Md. Sen. Clarence Mitchell III has died

    The Baltimore Sun

    Clarence M. Mitchell III, once the nation's youngest black legislator, died Thursday of cancer at age 72 at Seasons Hospice at the Northwest Hospital Center.
    Born in St. Paul, Minn., Mr. Mitchell served in the state House of Delegates from 1963 to 1967, when he was elected to the Maryland Senate. He served as a senator until 1986. He was elected at age 23.

    Full Story:,0,1793659.story

    Note: Mr. Mitchell attended our AAAA Conference in 2008 and accepted the "Drum Major for Justice" Award on behalf of his uncle Rep. Parren Mitchell...

    Diversity Officer Placed on Leave for Backing Initiative of Gay Marriage Foes

    Inside Higher Ed
    October 11, 2012 - 3:00am
    Gallaudet University placed its chief diversity officer on leave Wednesday, citing her decision to sign a petition endorsing a Maryland voter initiative designed to overturn the state's gay marriage law, the Associated Press reported. Angela McCaskill's signature on the petition was first reported in July, but on Wednesday, T. Alan Hurwitz, president of the Washington, D.C., university that specializes in educating the deaf, announced that he had placed McCaskill on paid administrative leave.

    Read more:
    Inside Higher Ed

    Scrutiny for Affirmative Action

    Inside Higher Ed
    October 11, 2012 - 3:00am

    WASHINGTON -- The University of Texas at Austin needs a fourth Supreme Court justice to preserve its ability -- and that of other colleges -- to consider race and ethnicity in admissions decisions. If one exists, he didn't reveal himself on Wednesday, when the U.S. Supreme Court heard arguments in a challenge to the university's approach to affirmative action.

    Read more:
    Inside Higher Ed

    On U. of Texas' Flagship Campus, Soul-Searching Over Diversity

    The Chronicle of Higher Education
    A Supreme Court case echoes across a university, and for some students, it's personal
    October 10, 2012

    Not long after the U.S. Supreme Court agreed to hear Abigail Fisher's case against the University of Texas at Austin, a lighthearted joke made the rounds at the Warfield Center for African and African-American Studies here on the flagship campus. At its core was a high-energy fifth-year student from Houston named Tedra Jacobs.
    Ms. Jacobs, an administrative assistant at the center, was admitted in 2008 as part of the freshman class Ms. Fisher had sought to join. Neither Ms. Jacobs nor Ms. Fisher graduated in the top 10 percent of her high-school class, a status that would have entitled her to admission under Texas law. So both were considered for admission under the university's "holistic review" policy, which includes race and ethnicity among many factors in weighing applications.

    Full Story:

    Supreme Court Hearing in Texas Admissions Case Exposes Gaps in Affirmative-Action Law

    The Chronicle of Higher Education
    October 10, 2012

    As the U.S. Supreme Court heard oral arguments on Wednesday in a lawsuit challenging race-conscious admissions at the University of Texas at Austin, it became evident that the court's past rulings on such policies have failed to provide colleges—or even the justices themselves—with clear guidance.

    Full Story:

    The Great Affirmative Action Lie

    The Root

    The Abigail Fishers and George Wills think that minorities have unfair advantages. Not by a long shot.

    By: Edward Wyckoff Williams|Posted: October 11, 2012 at 12:01 AM

    (The Root) -- Four decades after legalized discrimination was still codified in law, racial disparities persist at nearly every level of American society. From criminal justice to education, employment to housing, minorities in general and African Americans in particular continue to face an uphill battle toward social and economic equity.

    Full Story:

    Andrew F. Brimmer, Fed governor and head of D.C. control board, dies at 86

    The Washington Post

    By , Published: October 10

    Andrew F. Brimmer, who became the first African American member of the Federal Reserve Board in 1966 and headed a panel that managed the spending and financial practices of the D.C. government during a fiscal crisis in the 1990s, died Oct. 7 at George Washington University Hospital. He was 86.

    His wife, Doris M.S. Brimmer, confirmed the death but did not provide a cause.

    Dr. Brimmer, a Harvard-trained economist, had worked in academia and for the Commerce Department before President Lyndon B. Johnson appointed him to the seven-member Federal Reserve Board of Governors, which sets the country’s monetary policy and interest rates.

    Time magazine dubbed Dr. Brimmer “the Federal Reserve Board’s Jackie Robinson,” after the first African American player in major league baseball. Unlike many members of the Fed board, Dr. Brimmer used his position to advocate for wider educational opportunities in the country’s inner cities and warned that racial discrimination damaged the economy by marginalizing valuable workers.

    Full Story:

    High court hears biggest race case in six years

    NBC News

    Updated at 1:30 pm ET The United States Supreme Court heard arguments Wednesday in the most important civil rights case to come before the justices in the past six years: a challenge to the use of race as a factor in admissions at the University of Texas.
    The case involves Abigail Fisher, a white woman who applied to the school in 2008.
    She was not entitled to automatic admission under Texas’ "top 10 percent rule," which by law requires the university to admit all in-state high school seniors who rank academically in the top 10 percent of their classes.

    Full Story:

    7 Steps to Eliminating Gender-Based Wage Discrimination

    HR Daily Advisor
    Thursday, October 04, 2012 7:00 AM
    by Steve Bruce

    Without quite realizing it, employers can easily create situations that seem to smack of gender discrimination. And once there’s the appearance of discrimination, the lawyers will be looking for a settlement.

    To minimize the risk of EPA and Title VII wage discrimination claims, review your wage-setting practices based on the following strategies:

    1. Be sure any salary guidelines are based on objective criteria such as education and skill level, going market rates, and performance level. Employers without guidelines will have a tough time refuting claims of discrimination.

    Full Story:

    Wednesday, October 10, 2012

    The Inside Scoop in Fisher vs. University of Texas – Austin

    By Marilynn Schuyler, AAAA Region III Director, Schuyler Affirmative Action Practice
    October 10, 2012

    Attorneys on both sides were peppered with questions from the Justices almost immediately after they began their opening statements.  All of the Justices had questions for both sides of the issue, except Justice Kagen, who recused herself because she previously worked on the case, and Justice Thomas, who kept to his tradition of remaining silent.

    The first question came from Justice Ginsburg who asked about “standing” – whether the plaintiff, Ms. Fisher, actually sustained an injury and whether the case is now moot.  “Denial of her Constitutional right to Equal Protection under the law,” was the response.  From there we proceeded to the substance of the case.

    The most difficult question that was posed to both sides was, “How much is enough?”; How do you know when you have achieved “critical mass” and would no longer need to consider race in a holistic evaluation?  Justice Breyer asked Fisher’s attorney, “What precisely is it that Grutter required that is not satisfied here?”  The Plaintiff’s case centers around the idea that the 10% rule provides enough diversity, thus no further measures are needed. 

    The University of Texas established the holistic approach after the Grutter decision to try to attain a critical mass of minority students in individual programs.  Several Justices tried to pin down exactly what “success” would look like -- how would we know when critical mass was achieved?  The answer is necessarily subjective, because quotas are illegal.  Counsel for UT-Austin described the various methods for making this determination – composition of classrooms, responses from student surveys, etc.

    Justice Kennedy is viewed as the swing vote, and he had challenging questions for both sides.  To Fisher’s Counsel, “If UT’s plan is not necessary, because it admits so few minorities, then what exactly is the harm to nonminorities?”  To UT’s Counsel he asked whether race is a “tiebreaker,” and expressed concern about more “privileged” minorities taking spots that could be used by less privileged nonminorities.

    There was one point about which the Justices and Counsel on both sides of the argument seem to agree:  that there are educational benefits to diversity.  The divergence of opinion is centered around how to achieve this goal.

    Overall, those of us who want to protect affirmative action are cautiously optimistic.  The University of Texas has enacted a fair process, and we stand with them in defending it.  We celebrate the fact that there is a general acceptance of the benefits of diversity, because we know that expanding opportunity is an important national interest.
    Marilyn was Counsel of Record for the AAAA Amicus Brief in support of the University of Texas.  To download the brief, go to the AAAA website,