New executive order will expand race preferences throughout the federal government

Individuals should be treated as individuals and not on the basis of their membership in racial groups, especially by our government. Unfortunately, a new executive order encourages federal agencies to focus on racial group identity rather than the character and qualifications of employees and contractors. It will result in racial quotas in hiring, procuring, and even using artificial intelligence throughout the government.

The executive order’s stated goal is advancing racial equity throughout the federal government. The word “equity” appears 21 times. The order brims with talk about “new action plans to advance equity,” “extending and strengthening equity-advancing requirements for agencies,” and requires agencies to convene “Equity Teams” charged with ensuring that their agencies are “delivering equitable outcomes.”

While equity sounds similar to “equality,” the two concepts are quite different. A Biden campaign video narrated by Vice President Kamala Harris nicely sums up the difference, indicating that the administration uses “equality” to mean that each individual is given the same opportunities. “Equity,” on the other hand, seeks to achieve equal outcomes.

Equity’s demand for equal outcomes means that groups must be represented proportionately to their share of the population. However, no occupation has demographics that perfectly mirror the demographics of the general population. Cambodians are over-represented in the doughnut industry because of a single brave entrepreneur’s successes. Manicurists are disproportionately Vietnamese American due to actress Tippi Hedren’s volunteer work in a refugee camp in the 1970s. As Justice Sandra Day O’Connor famously quipped, “It is completely unrealistic to assume that unlawful discrimination is the sole cause of people failing to gravitate to jobs and employers in accord with the laws of chance.”

How can proportional representation be achieved in federal employment or contracting? Agencies often will be forced to discriminate against prospective employees or contractors from overrepresented groups to ensure that the numbers come out the right way. Instead of remedying unfair discrimination based on race, color or national origin, a demand for “equity” will actually encourage discrimination.

Marty Hierholzer’s story here is illustrative. Hierholzer is a disabled veteran and former naval deep sea diver who sought assistance through the Small Business Administration’s disadvantaged business program. However, Hierholzer was rejected from participating in the program because of his race.

The executive order also requires agencies to use “artificial intelligence and automated systems … in a manner that advances equity.” Computers cannot have the same kind of racial biases that humans do. Although the federal government can take appropriate measures to ensure that artificial intelligence is not used for intentional discrimination, it would be wrong to require that artificial intelligence be used in a manner that yields proportional demographic results. As with employment and contracting, this obsession with proportionality will lead to discrimination in violation of civil rights laws.

While the executive order avoids requiring racial quotas directly, using indirect methods to engineer particular racial outcomes is also illegal. Racist government officials in the Jim Crow South infamously used grandfather clauses and literacy tests as facially race-neutral methods of achieving racial goals. The courts did not accept these subterfuges, and nor should courts now. Rather than combating racial discrimination, this executive order will require it. 

Congress should use its investigative powers to expose discrimination brought about by these equity action plans. Individuals and businesses that face discrimination should challenge unlawful acts motivated by this executive order.  

Alison Somin (@AlisonSomin) is an attorney and legal fellow at Pacific Legal Foundation, a nonprofit legal organization that defends Americans’ liberties when threatened by government overreach and abuse.