Health care, banking and stimulus laws contain controversial quota requirements

When President John F. Kennedy included a call for “affirmative action” as part of an executive order issued in March 1961, the term conveyed benign, anti-discriminatory sentiments that now resonate with a broad cross section of contemporary Americans, a former U.S. Justice Department official told listeners at a recent forum sponsored by the New Orleans chapter of the Federalist Society.

There is a growing appetite for colorblind policies throughout the country, and that is the good news, Roger Clegg said during his luncheon address entitled “Affirmative Action in the Obama Era.” The bad news is that the term is sometimes synonymous with state sanctioned race and gender preferences that violate long-standing American principles of equality, he added. In a multi-racial, multi-ethnic society where it is becoming more difficult for the government to categorize individual Americans on the basis of a single race, preferential policies are becoming untenable, said Clegg who now serves as the president and general counsel of the Center for Equal Opportunity (CEO).

During the 2008 presidential campaign, then Sen. Barack Obama spoke out against the idea of preferential polices, but he has advanced legislation that includes race and gender conscious policy directives that the overwhelming majority of the Americans oppose, Clegg observed.

A report from The American Civil Rights Coalition (ACRC), based in Sacramento, Calif., details the preferences included within the Dodd-Frank finance bill, the Patient Protection and Affordable Care Act (PPACA) and Obama’s stimulus package.

“This administration speaks with forked tongue when it comes to the issue of race,” said Ward Connerly, a former University of California regent who heads up the ACRC. “When he was Sen. Obama, this president tried to portray this image that he is beyond race, post-racial, yet behind the scenes, he is conducting himself 180 degrees from that categorization. This administration profiles all the time.”

Section 342 of the Dodd-Frank bill, for example, calls for each federal agency involved with financial regulations to create an  “Office of Minority and Women Inclusion.” The idea is for these offices to have “jurisdiction over all matters relating to racial, ethnic and gender diversity in management, employment and business activities of their agencies,” according to the ACRC report.

Rep. Maxine Waters (D-Calif.) is identified in the report as the “primary architect” of Section 342.
“When one looks at the far‐reach of Section 342, one must ask why has there been no  public outcry against it, given the nation’s opposition to race preferences,” the report says. “There are probably several explanations, but most important is the fact that the overwhelming majority of Americans are unaware of Section 342.”

Several provisions folded away within the PPACA, also known as ObamaCare, also provide for quotas and set-asides.

The legislation states that any research organized with funds appropriated under paragraph H.R. 1-64 shall be consistent with federal policies relating to the inclusion of women and minorities in research. In the awarding of any grants for contracts, the secretary of Health and Human Services (HHS) must give preference to those entities that train individuals from “underrepresented minority” groups or those with as coming from disadvantaged background. In nursing, ObamaCare prioritizes initiatives that are designed to heighten diversity and to give preference to health organizations the train individuals from a minority background.

Under the stimulus bill, the preferences are advanced administratively, the report explains. The Federal Highway Administration (FHA) has, for example, threatened to withhold federal funds in an effort to coerce race-conscious policies onto the California Department of Transportation [CalTrans].
“It should be noted that California has a state constitutional prohibition against the use of race in the awarding of public contracts; however, there is also a provision that allows this prohibition to be overridden if the federal government requires race preferences as a condition of federal funding,” the report says. Conspiring with CalTrans, the Federal Highway Administration granted the waiver of California’s prohibition against race preferences requested by former California governor, Arnold Schwarzenegger.”

Connerly is the primary architect of California’s Proposition 209, which amended the state constitution to outlaw race and gender preferences. After passing with 54 percent of the popular vote in 1996, Proposition 209 became a model for other civil rights initiatives that have also become law in Washington State, Michigan and Nebraska. Next up is the Oklahoma Civil Rights Initiative, which will be on the ballot for voter approval in Nov. 2012.

The anti-discriminatory sentiment that has found expression in state ballot initiatives is not lost on President Obama, Clegg, the Federalist Society speaker, noted in his talk.

“The president’s instincts on this are pretty good,” he said. “He understands this is not a good issue for his party. But you don’t just elect a president, you elect an administration, and this administration is pushing for race and gender preferences.”

Kevin Mooney is an investigative reporter with the Pelican Institute for Public Policy. He can be reached at and followed on Twitter.