What Hillary and Donald Think About Affirmative Action and Non-Discrimination (Part 1 of 4)

20160324 John Blog Graphic

What Hillary and Donald Think About Affirmative Action and Non-Discrimination (Part 1 of 4)

Surprise! They are both FOR Affirmative Action and oppose unlawful employment discrimination!

TRUMP ON AA: Mr. Trump even “called out” then sitting United States Supreme Court Justice Antonin Scalia for a controversial statement Justice Scalia made during oral argument before the Supreme Court of the United States (SCOTUS) in the Fisher v. University of Texas Affirmative Action preferences in admission case which questioned the utility of affirmative action. (Abigail Fisher is a White applicant to UT to whom UT denied admission. Ms. Fisher claims that UT admitted less qualified Black students who took “her seat” in the University due to a race-based admission process she claims is unconstitutional). In a December 13, 2015 interview on CNN’s “State of the Union” show, Mr. Trump said the following about Scalia’s statement in his own forceful, candid and irreverent style:

“I don’t like what he said, no, I don’t like what he said. I heard him, I was like, ‘Let me read that again,’ because I actually read it in print, and I’m going, I read a lot of stuff, and I’m going, whoa.”

Mr. Trump also added that Justice Scalia’s comments were “…very tough to the African-American community.” * * * “I have great African-American friendships. I have just amazing relationships. And so many positive things have happened.” Mr. Trump’s statements were in response to Justice Scalia’s question at oral argument whether minority students who were not qualified for admission at elite universities would perform better at “less-advanced schools.”

Candidate Trump also told Meet the Press in August 2015:

“I lived with it [Affirmative Action] for a long time. And I’ve had great relationships with lots of people. So I’m fine with it.”

But reacting to Justice O’Connor’s comments hoping for the end of Affirmative Action (discussed below), Mr. Trump has also had this to say:

“Q: You said that you’re “fine” with affirmative action. What about those who say the time for that kind of preferential treatment has come and gone?

TRUMP: I’m fine with it, but we have it, it’s there. But it’s coming to a time when maybe we don’t need it. That would be a wonderful thing. I don’t think we need it so much anymore. It has served its place, and it served its time. Some people have loved it and some people don’t like it at all. But I think there will be a time when you don’t need it.”

Source: Fox News Sunday 2015 Coverage of 2016 presidential hopefuls, Oct 18, 2015

Trump also had this to say about sexual-orientation (16 years ago when gay rights were in their infancy and most homosexuals and lesbians were still in the closet):

“One of our next president’s most important goals must be to induce a greater tolerance for diversity. The senseless murder of Matthew Shepard in Wyoming-where an innocent boy was killed because of his sexual orientation – turned my stomach. We must work towards an America where these kinds of hate crimes are unthinkable.”

Source: The America We Deserve, by Donald Trump, p. 31 , Jul 2, 2000

CLINTON ON AA: For her part, of course, Mrs. Clinton is an enthusiastic supporter of affirmative action and non-discrimination. Mrs. Clinton also spent considerable time, thought and money courting the Black and Hispanic vote when running for President 9 years ago before losing the Democratic Party nomination for President of the United States in 2008 to Barack Obama. Mrs. Clinton seems to have coined a new Affirmative Action catch-phrase for this year’s 2016 Presidential race by harkening back to President Roosevelt’s Administration by now calling for a “New Deal for Communities of Color”:

“The discussion has to go a lot further because we‘ve got to do more about the lives of these children. That’s why I started off by saying we need to be committed to making it possible for every child to live up to his or her God-given potential. If you don’t have schools that are able to meet the needs of the people, or good housing, there’s a long list. We need a New Deal for communities of color.”

Source: CNN Democratic primary debate in Las Vegas, October 13, 2015.

Despite these general statements of support from both candidates, it is nonetheless troubling that there are not more direct and complete statements from both candidates about Affirmative Action and about enforcement of the country’s Non-Discrimination laws. (Indeed, I sometimes wonder whether Affirmative Action has lost its relevance to current political candidates). Too, one has to continue to watch carefully what will emerge from the Trump campaign. Republicans are the minority political party (from a registered voter’s headcount perspective) and must win cross-over Democrats to win the Presidency.

Anti-affirmative action messages “sell” well to blue collar employees and unions. (It is little remembered now that Ronald Reagan ran on an anti-Affirmative Action platform and brought almost half of all union members who voted over to the Republican side). While Mrs. Clinton has deep ties to organized labor, voting polls today show Donald Trump wooing a large segment of blue collar voters. You can bet the Trump and Clinton organizations will be doing private polling on these issues. It will be very interesting to see whether Mr. Trump holds to his historic support of Affirmative Action or whether poll numbers drive him to eventually oppose Affirmative Action.

Part two will be published soon, stay tuned!

THIS COLUMN IS MEANT TO ASSIST IN A GENERAL UNDERSTANDING OF THE CURRENT LAW AND PRACTICE RELATING TO OFCCP. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. COMPANIES OR INDIVIDUALS WITH PARTICULAR QUESTIONS SHOULD SEEK ADVICE OF COUNSEL.

Reminder: If you have specific OFCCP compliance questions and/or concerns or wish to offer suggestions about future topics for the OFCCP Week In Review, please contact your membership representative at 866-268-6206 (for DirectEmployers Association Members), or email Candee at candee@directemployers.org with your ideas.

Receive OFCCP compliance alerts and updates right on your phone! Text the word compliance from your mobile phone to 55678 (all applicable charges and fees set by your cell phone carrier will apply).
Don’t miss Candee and John present at the DirectEmployers 2016 Annual Meeting & Conference (DEAM16), May 18-20. Agenda and registration are available on the DEAM16 website.

About the Author

John C. FoxJohn C. Fox, Esq. is President and Senior Partner at Fox, Wang & Morgan P.C. where he represents companies and tries cases in state and federal courts throughout the United States. Mr. Fox has extensive trial experience, having spent more than 300 days in trial. Mr. Fox was also lead trial counsel in the first of the four wage-hour class actions known to have been tried in California and was lead trial counsel in what are believed to have been the two largest disability law suits in the United States. He is an across-the-board employment lawyer representing management nationwide.View all posts by John C. Fox »