FCS Diversity and Inclusion - PROPOSED RULE - MARCH 2011
July 25, 2011
To whom it may concern:
We are writing to comment on the May 25, 2011 Federal Register notice (76 FR 30280) re “Proposed Rules FARM CREDIT ADMINISTRATION (FCA)” // “General Provisions; Operating and Strategic Business Planning.”
The recurrent theme in the rules is a desire for “diversity and inclusion.” The problem is that mandating “diversity” will inevitably push decisionmakers to make their decisions with an eye on race, ethnicity, and sex and toward achieving particular racial, ethnic, and gender outcomes. Such discrimination and preference is illegal, divisive, unfair, and inefficient. The entire draft should therefore be rewritten with the focus on “nondiscriminatory inclusion” instead. In addition—and even if this rewriting is not done—it needs to be spelled out that nothing in the rules authorizes or allows weighing race, ethnicity, or sex in any decision by the FCA, its employees, or those with whom it works.
To elaborate briefly: It is generally unconstitutional for the government to show favoritism or even use classifications based on race, ethnicity, or sex. See Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995) (“all racial classifications … must be analyzed by a reviewing court under strict scrutiny”); Mississippi University for Women v. Hogan, 458 U.S. 718 (1982) (gender classifications require an "exceedingly persuasive justification"). Indeed, such classifications and favoritism are “presumptively invalid” (see Personnel Administrator v. Feeney, 442 U.S. 256 (1979)). Title VI of the 1964 Civil Rights Act, 42 U.S.C. 2000d, which covers federally funded programs, is coextensive in its prohibitions of racial and ethnic discrimination with the Constitution, as is 42 U.S.C. 1981, which applies to all contracts, including procurement and employment contracts. See Gratz v. Bollinger, 539 U.S. 244 (2003). Discrimination on the basis of race, ethnicity, and sex in employment, including federal employment, is also contrary to Title VII of the 1964 Civil Rights Act, 42 U.S.C. 2000e et seq., and the reasons why a desire for “diversity” does not change this fact—as well as discussion of where the line ought to be drawn between lawful and unlawful efforts at “inclusion”—is elaborated on in the testimony (in two parts) which we delivered to the U.S. Equal Employment Opportunity Commission, which can be viewed at this link and which we respectfully ask be included in the record as part of our comment today: http://www.ceousa.org/content/blogcategory/56/85/
Thank you very much for your attention to our concerns.