Hans Bader of the Competitive Enterprise Institute, a frequent commenter here, points to a decision by the Prince William County, Virginia, Human Rights Commission to investigate a decision by the county school board to substitute a policy of colorblind non-discrimination for its old policy of race- and gender-based hiring.
The old policy:
Analyze present work force to identify jobs, departments and schools where minorities and females are underrepresented. Set specific, measurable, attainable hiring and promotion goals, with target dates, in each area of underrepresentation. Make every administrator and supervisor accountable for helping to meet these goals
The new policy:
The Prince William County School Board is committed to a policy of nondiscrimination and to the provision of equity in its educational programs, services and activities for all students and employees.
Apparently in Prince William County colorblind non-discrimination poses a threat to human rights that must be investigated.
The investigation is baseless, of course.
Neither federal law nor Virginia law requires affirmative action. “Human rights” don’t yield a different result.
A federal appeals court rejected claims that the Constitution and the Civil Rights Act protect affirmative action from repeal in Coalition for Economic Equity v. Wilson, 122 F.3d 692 (9th Cir. 1997).
That case upheld California’s Proposition 209 banning race and gender-based affirmative action in state and local government hiring, contracting, and admissions, against a legal challenge.
In that case, left-wing groups, in their unsuccessful challenge to the ban on affirmative action, filed briefs claiming that Prop. 209 violated international human-rights norms.
The Virginia Constitution doesn’t require affirmative action, either. (There isn’t much case law under Virginia law, unless you count a case where the Virginia Supreme Court allowed a white male employee to sue for termination in violation of public policy for discrimination).
The Prince William County School Board’s action was a sensible form of risk management.
Virginia school officials who adopt an unconstitutional affirmative action policy can be sued individually, and forced to pay damages out of their own pockets, if the policy’s illegality is clear.
So ruled the federal appeals court with jurisdiction over Virginia school boards, in Alexander v. Estepp, 95 F.3d 312 (4th Cir. 1996), which held Prince George’s County officials personally liable for discriminating against white males.