Browsing by Author "La Noue, George R."
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Item American Dreams: Debating Immigration & Border Security on Campus(National Association of Scholars) La Noue, George R.Item Can the Federal Transportation DBE Program Be Narrowly Tailored to Remedy Discrimination?(The Federalist Society, 2007-10-01) La Noue, George R.The federal transportation Disadvantaged Business Enterprise (DBE) program is a relic from another era that no longer serves a civil rights purpose. DBE is the progeny of the 10% minority set-aside provision in the 1977 Public Works Employment Act (PWEA). That Congress was responding to a temporary economic downturn and the 1968 Kerner Commission, which highlighted the special plight of African-Americans. Creating a share for them and other minority communities seemed like an important part of overall economic pump-primingItem Deconstructing the Affirmative Action Categories(SAGE, 1998-04-01) La Noue, George R.; Sullivan, John C.Affirmative action preferences have traditionally benefited four racial and ethnic group categories: African Americans, Hispanics, Asian Americans, and Native Americans. These categories may be overinclusive, masking important socioeconomic differences among nationalities within the categories. The problem of overinclusiveness is now being raised by post-Croson disparity studies and by courts evaluating those studies, particularly in the area of business formation rates. When the differences among nationalities are compared through census data and regression analysis, they show wide variations within the affirmative action categories and for White ethnic groups as well. This suggest that a discrimination hypothesis cannot explain all these variations. The affirmative action categories reflect bureaucratic convenience more than demographic realities.Item Deconstructing the Republic: Voting Rights, the Supreme Court, and the Foundersā Republicanism Reconsidered(The AEI Press) La Noue, George R.In this book, Anthony Peacock, who teaches political science at Utah State University, explores political and legal interpretations of the Voting Rights Acts (VRA) which encourage a kind of multiculturalism or identity politics that he considers destructive to the Foundersā constitutional vision. Thus, the book functions at two levels. First, it is a very useful overview of the implementation of the VRA which was extended by Congress in 2006 for another 25 years. Second, it is a provocative argument about the kind of voting arrangements Peacock believes are consistent with Madisonian Republicanism and the role of the VRA in undermining them. He concludes: āThe Founders hoped that the various institutional processes of the national government would involve reasoning on the merits of legislative proposals with a view to protecting individual rights and promoting the general welfare. . . The current VRA ā the VRA of second-generation voting rights ā requires legislators, judges, and administrators to think in racial terms, to count in racial terms, and to allocate political power in racial termsāItem Defining Social and Economic Disadvantage: Are Government Preferential Business Certification Programs Narrowly Tailored?(University of Maryland Law Journal of Race, Religion, Gender and Class) La Noue, George R.The passage of the Public Works Employment Act (āPWEAā) of 1976 which set aside ten percent of all procurement dollars awarded under it for āminority owned businessesā began a precedent of the use of contracting preferences for these firms in various federal programs. Later, many of these procurement programs were expanded to include women-owned businesses as beneficiaries. Soon such programs were initiated by state and local governments across the country. Race and gender preferential contracting programs have always had an uneasy relationship with equal protection principles. Although the PWEA survived a United States Supreme Court decision in Fullilove v. Klutznick, in two later landmark decisions, City of Richmond v. Croson and Adarand v. Pena, the Court determined that strict scrutiny would be the standard of review for race-based programs. Specifically, such programs would need to have a compelling interest and be narrowly tailored to survive. Since then, lower courts have made several dozen decisions applying these standards. Courts have heavily criticized some of these programs for not having a compelling interest, but more often where preferential programs have been terminated or altered, it has been because they have not been narrowly tailored. The most common programmatic defect has been including groups without evidence of discrimination against them. There is another narrow tailoring problem courts have not addressed. Almost all preferential contracting programs require as a condition of participation that individual firm owners seek certification as a Disadvantaged Business Enterprise (āDBEā) for federal procurement or Minority and Women-Owned Business Enterprise (āMWBEā) for state and local procurement. Without such certification, a businesscannot receive a preferential contract or be counted in meeting a goal. The certification process to determine social and economic disadvantage are remarkably uniform across agencies and levels of government. Three characteristics of the certification process raise narrow tailoring problems. First, the social disadvantage affidavit requires only that the owner affirm that he or she has been āsubjected to racial or ethnic prejudice or cultural bias.ā These phrases do not properly distinguish between remediable discrimination and societal discrimination, which the Supreme Court has found is not a basis for a narrow tailored remedy. Second, there is evidence that while the process for challenging the rebuttable presumption of social disadvantage exists, the criteria for establishing that an owner, identified as a member of a designated group, now has sufficient achievement and social standing to be no longer socially disadvantaged does not exist. Thus, social disadvantage is as a practical matter established at birth and cannot be challenged by evidence of a successful life. Third, the economic disadvantage affidavit requires that an owner attest that āmy ability to compete in the free enterprise system has been impaired due to diminished capital or credit opportunities compared to other businesses in the same or similar lines of business who are not socially or economically disadvantaged.ā This attestation requires the owner to have accurate information about the capital and credit opportunities of the other businesses. The diminished status has no time or place limitations. The certification process requires no actual information about the applicantās credit or borrowing history. This Article examines the legal framework for the certification process as well as two different sources of empirical evidence. A number of disparity studies around the nation have asked minority and women business owners whether they have suffered from businessrelated discrimination. Most owners, in fact, do not claim they have suffered from discrimination. The second source of empirical evidence is from a telephone survey where certified Maryland MWBEs were asked what they thought the concept of social disadvantage meant and to describe the incidents of discrimination that had affected them. Overwhelmingly, these results show that owner understandings of disadvantage and discrimination are inconsistent with the requirement to identify relevant discrimination outlined in Croson. The Article then concludes by suggesting some modifications in the certification process to make it narrowly tailored.Item Discrimination in Public Contracting(The Hoover Institution Press) La Noue, George R.How much discrimination is there in contemporary public contracting in the United States? Because these contracts cover almost everything available in commercial markets and because virtually all governments need to make purchases and have the authority to do so, no definitive answer can be given to a question of such scope and complexity. Nevertheless, forming a reliable estimate is essential for at least two reasonsItem Diversity and Exclusion(Springer US, 2018-06-30) La Noue, George R.Item Encouraging Diverse Policy Viewpoints on Campus(The James G. Martin Center for Academic Renewal, 2017-11-17) La Noue, George R.In the last few years, higher education has suffered an embarrassing series of well-publicized incidents of overt censorship by members of the academic community. The instances are geographically widespread and occur in a variety of institutions.Item ETHICAL IMPERIALISM: INSTITUTIONAL REVIEW BOARDS AND THE SOCIAL SCIENCES(Johns Hopkins University Press) La Noue, George R.Institutional Review Boards (IRBs) are at once both ubiquitous and paradoxical in higher education. Since their creation in 1966 with a limited mandate over medical and behavioral research, IRBs now assert the right to review, amend, censor or reject any research, funded or unfunded, by any member of the academic community that involves āhuman subjects.ā No one knows how many tens of thousands of projects are submitted and shaped by this process every year.Item Gross Presumptions: Determining Group Eligibility for Federal Procurement Preferences(Santa Clara Law Review) La Noue, George R.; Sullivan, John C.While there has been substantial administrative reformulation of federally-sponsored Minority Business Enterprise (MBE) programs' after the Supreme Court's decision in Adarand Constructors, Inc. v. Pena, the key premise upon which all these programs rest remains unchanged. Despite frequently voiced judicial skepticism about the broad use of racial classifications, all federal MBE programs are based on the "presumption" that every member of certain racial and ethnic groups is "socially," and to some degree "economically," "disadvantaged." This article explores the historical origins, administrative applications, contemporary social science research, and constitutional law related to this presumptionItem The Impact of Desegregation on College Choices of Elite Black Athletes(Sciedu Press, 2014-08-21) La Noue, George R.; Bennett, Mark; UMBC School of Public Policy; UMBC Faculty CollectionEven a casual observer of American college athletics can see the emergence of star black athletes in conferences that once were racially segregated. By analyzing the college origins of National Football League and National Basketball Association draft choices between 1947 and 2011, this research measures the impact of higher education desegregation on the choices of elite African-American athletes in moving from historically black institutions (HBIs) to traditionally white institutions (TWIs). Using draft data and narrative descriptions, this paper documents when, why, and how this shift occurred. The desegregation of American education sometimes had the perverse effect of increasing opportunities for individual African-Americans, while subordinating the role or even extinguishing the black institutions serving that population in the Jim Crow era. In the desegregated era, there are some benefits to individual black athletes whose high professional draft status may make them young millionaires and to the states which have replaced a rigid odious racial color consciousness with fans cheering for university team colors worn by both their black and white athletes. But there is a price paid by the athletic programs of HBIs who are now confined to lower level conferences away from the most publicized contests. Some data reflected in the paper suggests that HBIs are losing in the competition to recruit elite black students in non-athletic fields as well.Item Judicial Strict Scrutiny and Administrative Compliance: The Case of Public Contracting Preferences(bepress, 2013-08-28) La Noue, George R.; Speake, MatthewSynopsis What circumstances determine compliance with or resistance to federal judicial rulings in the United States? Compliance may depend on court unanimity, executive branch concurrence, legislative enactment, and stakeholdersā support. Judicial interpretations of the 14th Amendment Equal Protection Clause and various civil rights statutes made discrimination against minority groups and women illegal. However, they have also functioned as a check against political coalitions that seek to use racial and gender preferences in distributing university admissions, public employment, and public contracting benefits in favor of those groups. In its City of Richmond v. Croson (1989) decision, the U.S. Supreme Court held that the standard for review of race-based procurement programs was the strict scrutiny test, requiring a government to have a compelling interest and to use the most narrowly tailored means to achieve its goals. Gender based classifications must pass the āexceedingly persuasive justificationā test. When Croson was decided there were more than 230 state and local public preferential contracting programs scattered across the country. Since 1989, lower courts made decisions requiring changes in many federal, state and local preferential contracting programs. But what happened after the courts acted? Were the preferential programs permanently suspended or were they continued with only minor changes or were the court decisions simply defied? Using historical, legal, and political science tools, this paper examines the aftermath of judicial rulings for fifteen local, state and federal contracting programs and the factors determining individual outcomes. This analysis will be used to re-examine theories about judicial compliance in the area of public contracting.Item The Muddled Future of Mid-Major Athletics(The Chronicle of Higher Education, 2014-12-05) La Noue, George R.While media attention is overwhelmingly focused on big-time intercollegiate athletics, a crisis is developing for most of the 351 Division I institutions that cannot afford to play at that level. From the perspective of the cable networks, Division I is a world of gigantic stadiums and basketball arenas, with coachesā salaries and egos to match. For most Division I members, however, the realities in that world look very different, and the National Collegiate Athletic Association has just taken steps to accentuate the differences. This year the NCAA changed its governing structure to give more influence and autonomy to 67 universities in the Power Five football conferences (Atlantic Coast, Big Ten, Big 12, Southeastern, and Pacific-12, plus Notre Dame).Item Narrow Tailoring the Federal Transportation DBE Program(The Federalist Society, 2006-03-04) La Noue, George R.Under the Supreme Courtās strict scrutiny test, governments must have both a compelling interest to employ a racial classification in a program and that use of race must be narrowly tailored. After Adarand Constructors, Inc. v. Pena, the Clinton Administration took steps to buttress the Disadvantaged Business Enterprise (DBE) components in the massive federal transportation subsidy programs. The DBE classification which makes firms eligible for preferences in meeting contracting goals relies on racial, ethnic and gender presumptions about which firm owners are economically and socially disadvantaged. Under its āmend, donāt endā philosophy toward affirmative action, new studies and reports were created to provide the compelling interest prong for the DBE program, while some administrative revisions were made to meet the narrow tailoring test.Item A New Era in Federal Preferential Contracting? Rothe Development Corporation v. United States Department of Defense and Department of the Air Force(The Federalist Society, 2009-02-16) La Noue, George R.On Election Day, while the countryās attention was otherwise engaged, the Federal Circuit Court of Appeals unanimously stuck down the racial preferences in Section 1207 of the National Defense Authorization Act (1987), the federal defense contracting program. Although racial preferences in federal contracting began in the 1977 Public Works Employment Act (PWEA) and have subsequently spread to dozens of other programs and agencies, the Rothe v. Department of Defense and Department of the Air Force decision marks the first time a facial challenge to a federal preferential contracting program has ever been successful. Rotheās victory came after ten years of litigation that involved losing three trial court decisions and then winning reversals and remands in two Circuit Court opinions in 2001 and 2005. In its third encounter with the case, precedents had so tightened the evidentiary requirements for contracting preferences that the Federal Circuit fi nally found the 1207 program unconstitutional on its face.ā Because of the unique status of the Federal Circuit Court of Appeals which can have national jurisdiction over federal contracting, the Rothe decision has far more significance than a decision by another Circuit which would be enforceable only in that Circuit. The Bush Department of Justice opted not to seek en banc reconsideration and Obamaās new team decided not to petition for certiorari, so the Rothe rules will have to be seriously considered as the Obama administration crafts its stimulus programs with expanded federal procurement.Item Pruning the Overgrowth of Government Contracting Preferences(The Federalist Society, 2011-09) La Noue, George R.The policy of creating preferences for businesses owned at least fifty-one percent by members of āminorityā groups is now more than three decades old. In 1977, Congressman Parren Mitchell, the head of the Congressional Black Caucus, inserted into the Public Works Employment Act an amendment guaranteeing that at least ten percent of the funding of all contracts under this program be awarded to minorities (āblacks, Hispanics, Asians, Native Americans, Eskimos and Aleutsā). In Fullilove v. Klutznick, the Supreme Court, in a ruling without a clear standard of review, decided that the expenditure program was constitutional. After the Courtās response to these federal racial preferences, copycat programs spread to a variety of federal agencies and to many state and local governments where the political climate was favorable.Item Rebalancing the Narrative: Higher Education, Border Security, and Immigration(National Association of Scholars) La Noue, George R.The size and characteristics of immigration to the United States have been historically contentious issues. Nevertheless, there is probably a greater partisan division on this subject than ever before. While there are several important pro-immigration expansionist stakeholders, one of the most vocal has been higher education. From the public statements of academic organizations, testimony and litigation sponsored by the higher education establishment, as well as student activism, there has been a consistent effort to oppose border enforcement and to expand multiple forms of immigration.Item Serious Consideration of Race-Neutral Alternatives in Higher Education(Catholic University Law Review) La Noue, George R.; Marcus, Kenneth L.What does it mean for a university to "seriously consider" race-neutral alternatives? Does it require, for instance, on-the-record review,documentation of underlying facts, or demonstration of an empirical basis for a decision? Justice Sandra Day O'Connor's affirmative action jurisprudence requires post-secondary institutions to address these questions, yet does little to answer them. By requiring universities to conduct "serious, good-faith consideration of workable race-neutral altematives before engaging in nonremedial race-conscious activities-but without specifying the requisite nature and scope of this "consideration"-Justice O'Connor has left many institutions to wonder what is needed to satisfy the Court.Item SETTING GOALS IN THE FEDERAL DISADVANTAGED BUSINESS ENTERPRISE PROGRAMS(George Mason University Civil Rights Law Journal) La Noue, George R.The Disadvantaged Business Enterprise ("DBE") program, administered by the United States Department of Transportation ("USDOT"), has had a long history of controversy. The program has been the subject of six conflicting circuit court decisions,' and Congress came close to terminating it in 1997.2 The judicial and legislative disputes stem from the racial, ethnic, and gender contract goals embedded in the program and the amount of money at stake.Item Social science and minority "set-asides"(American Enterprise Institute (AEI)) La Noue, George R.For the past half century, government agencies and the courts have relied on social scientists to define and measure discrimination. The most famous result was the Supreme Court decision in Brown v. Board of Education, which cited the work of Kenneth Clark, Gunnar Myrdal, and other social scientists to prove that segregation harmed black children. In countless decisions and reports since, social-science research has been used to attack racial classifications and stereotypes.