U.S. Commission on Civil Rights Declares that "Goals" Really Are Quotas–But Only When They Apply to Goals the Commissioners Don't Like.

It's never a dull moment at the Commission on Civil Rights.

|The Volokh Conspiracy |

For decades, conservatives have argued that when the Office of Federal Contract Compliance Programs sets minority hiring "goals" for federal contractors, in reality the agency is requiring that the contractor discriminate on the basis of race (or in the case of sex goals to discriminate on the basis of sex). Ditto for colleges and universities that set racial admissions goals. Somehow the admissions officers always manage to meet them. "Goals" in this context are a directive to do what's necessary to achieve them. The difference between a goal and a quota is thus rhetorical. They function the same. The real issue is discrimination.

Progressives say, "IT'S JUST A GOAL, NOT A QUOTA!!" Goals are good, we are told. Quotas are bad, but there are no quotas, we are told.

Until now. Suddenly, even Progressives agree that goals are quotas.

Attorney General Sessions has come up with written guidelines for how immigration administrative law judges will be evaluated. Among the many things that will be considered will be the efficiency with which an ALJ processes cases. (This is part of the evaluation process for other kinds of ALJs too.) The document states that ALJs should aim to process 800 files a year. It is clearly labeled as a "goal." But the liberal media and my colleagues on the Commission are calling it a "quota." Here is what transpired at our telephone meeting last week during the debate over whether to issue a statement denouncing the guidelines and calling the efficiency provision in the guidelines a "quota":

COMMISSIONER HERIOT: Madam Chair?

CHAIR LHAMON: Commissioner Heriot?

COMMISSIONER HERIOT: I just want to point out, I'm looking at the document right now. It … uses the term goals, not quotas.

So if the concern is that these are quotas and not goals, and I think that the difference is often overstated. But it says goals, it doesn't say quotas.

COMMISSIONER NARASAKI: I would like to note that in fact my statement notes that they act as quotas. They're not being called quotas for obvious reasons.

But because of—it's a set number. And because it automatically notes and then you will be considered to be performing less than satisfactory, then it is in fact a quota.

COMMISSIONER HERIOT: Madam Chair?

CHAIR LHAMON: Commissioner Heriot?

COMMISSIONER HERIOT: I just want to point out that the next time we talk about quotas and goals, I hope that Commissioner Narasaki will retain her view that goals really are quotas.

Usually people who are left of center are arguing it the other way.

The statement, which seems to object to putting pressure on ALJs to decide cases efficiently, was approved by the Commission 6-2.

Incidentally, a few years ago, the Commission conducted an investigation into the conditions at immigration detention centers. When we arrived at the first center, it was clear that my colleagues were surprised at how agreeable conditions actually were. I wrote in my Dissenting Statement to the Commission's "With Liberty and Justice for All: The State of Civil Rights at Immigration Detention Facilities."

[A] funny thing happened on the way to exposing "egregious human rights and constitutional violations [which the Chair had expected]." The detention centers weren't nearly as bad as we had been led to believe. Indeed, the Karnes facility was surprisingly attractive for a detention facility.

Some of our Commission members and staff appeared to be quite surprised at the quality of treatment they saw. When we were led to a room at the Karnes facility that contained rows and rows of brand new brand-name clothing and told that new arrivals were permitted to select six outfits for themselves and each of their children, the looks on the faces of my colleagues were of astonishment. Questions were asked: "These clothes aren't new, are they?" Yes, they are new, the tour guide explained. "I guess they are donated, right?" No, the tour guide replied, they are purchased by GEO (the private company that owns and manages the Karnes facility in cooperation with ICE).

The one thing that did concern the residents at the Karnes facility was the slow progress of their legal cases. Sessions is onto something.

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  1. ‘When I use a word,’ Humpty Dumpty said, in rather a scornful tone, ‘it means just what I choose it to mean ? neither more nor less.’

    1. +umpteen giggles

    2. Does that apply to usage of “Republican” and “independent?”

      1. As much as it applies to your usage of such terms as “reason”, “logic”, “liberal”, “libertarian”, “educated”, etc.

      2. Certainly it applies to ‘ moderate.’

  2. Just as some commissioners masked their political affiliations to promote their ideological aims, commissioners probably should refrain from voluntary public discussion of those aims when the aims tend to be backward and incongruent with the general arc of progress in our society. The more people understand about some goals, the less likely those goals are to be achieved.

    1. …. the general arc of progress in our society.

      Why do you totalitarian leftists always talk in this sort of Orwellian language?

    2. If your idea of “progress” includes forced cake baking, racial and gender quotas, government funded sex changes for transgenders, and so forth, then count me out. I want no part of your “progress.”

    3. “Agree with me, or STFU.” would have been more to the point, no?

      1. “Agree with me, or STFU.” would have been more to the point, no?

        Not even close.

        First, the backward and intolerant have rights, too.

        Second, I like it when the right-wingers voluntarily address these issues and self-identify as what and who they are. It helps young people form lifelong impressions and voting patterns.

    4. “Arc of progress” implies directed predictable movement. Ballistic missiles have arcs of progress. 5 year plans have arcs of progress.

      Societies do not have arcs of progress, no matter how much statists may want it so.

      1. Weeeell, up to a point. First “arc of progress” is a respray of “march of progress” which has had to be retired on account of its unacceptably militaristic connotations. But you’re right that the general idea is that history has a predictable path (Thanks Karl.) But of course it doesn’t.

        The contrary view, that history is a random walk, is equally unlikely. That doesn’t mean we can predict the course of history – it’s much too complicated – but there are some algorithms at work. For example while it is possible to lose knowledge in some civilisational disaster, it’s much more likely that knowledge accumulates. Capital is largely composed of knowledge, and so it’s very likely that our societies will continue to get richer and richer. That doesn’t mean we’re becoming nicer people. But it does mean that increasingly we will need to take active steps if we want to keep people miserable, at least materially. Fortunately we have no shortage of folk working on this problem.

        1. How can one even know the direction of the arc of history?

          According to progressives, the arc of history used to be going in the direction of compulsory sterilization, alcohol prohibition, etc.

          Then they recast these things as right-wing and were able to get rid of them.

      2. SR&C: “5 year plans have arcs of progress.”

        Um, no. Almost never. Or the Soviet Union would have been an economic marvel.

        But I get your point.

    5. It’s as if you have a cut and paste response to every post, with a few words added to briefly acknowledge the post’s topic.

      1. It’s not a real person, it’s a bilebot.

    6. You have a vile hatred of religion, but are more religious than anybody else on this site, your god is simply progressive government. You even co-opt a belief in an arc of progress that is basically Intelligent Design but through an administrative and liberal state instead of a god. You deny evolutionary theory and the idea of little patches of experimentation to see which methods/programs work best.

      You’re an evangelical christian who simply has a different god.

      1. Religion can be good or bad. It can provide comfort or precipitate good works. It also generates backwardness, violence, and bigotry.

        I do not believe superstition improves intolerance, ignorance, or backwardness.

        With respect to religion, I am generally agnostic but find most organized religion unworthy of an adult’s respect.

        Choose reason. Every time.

  3. Shorter Gail Heriot, Professor of Law and member of the US Commission on Civil Rights: “Checkmate, libtards!”

    1. Sadly not. They continued with their goals = quotas statement after Gail Heriot had pointed out the hypocrisy. Which indicates that they’re not worried that it’ll come back to bite them, next time they want to insist that goals are not quotas. And they’re right. The only people who will remember will be GH herself and a few VC readers. And it’ll prove to be very hard to find the reference to this particular backflip on Google.

      You should watch a few Jordan Peterson talks. Consistency is no virtue, it’s a tool of the patriarchal oppressors.

  4. Perhaps Prof. Heriot can answer – the Commission on Civil Rights was established as a compromise in 1957, as a strictly investigative body, when there weren’t really a lot of agencies with power to enforce antidiscrimination laws (and the antidiscrimination laws generally applied to public, not private actors).

    Since 1957 there’s been more civil-rights agencies with enforcement power and more civil-rights laws overall.

    Does this committee still have the same need to exist which it had in 1957?

  5. Typical Progressive Plantation tactic: redefine words and terms. We see it all the time, not just claiming goals are the new quota. Like Climate Change has been redefined to mean Anthropogenic Global Warming. Assault Weapon had been redefined based on the cosmetic appearance of a firearm. Using Extreme Careless instead of Gross Negligence to circumvent the law. Watch what happens when they have their definitions used against them; they’ll once again redefine the word/term to something else.

    1. It wasn’t the Democrats or liberals (or moderates, or libertarians) who redefined the terms “Republican” and “independent” in the context of the Civil Rights Commission.

      I noticed that it appears Democrats may have adopted that maneuver recently in the context of eligibility for service as a commissioner; if so, it remains shabby conduct, and I hope Democrats are using it merely temporarily, to demonstrate a “no free swings” approach to right-wingers.

      1. Progressive, as a term, is similar to Liberal, Moderate, Conservative, Libertarian as it is an ideology not a political party.

        Progressivism, ideologically, is similar with its Marxist tovarisch like Communism and Socialism.

        Democratic and Republican are political corporate entities not government entities.

        BTW: Nice try at deflection however the topic was changing the definition of words/terms.

  6. Gail,
    Thank you for linking to the statement which linked to the policy. I think your colleagues are correct, this is more like a quota than a goal.

    The document is labeled a “Performance Plan” which gives sections for “satisfactory performance” 700 cases per year; “Needs improvement” as between 560-700 a year; and “unsatisfactory performance” as fewer than 560 cases per year. In the context of employee evaluation, that’s a quota.

    I read your block quote from the dissent and skimmed the dissent (it really could have used a summary or introduction at the front), I’m having trouble seeing how it relates to the goal/quota hypocrisy.

    1. And yes, from my experience in federal contracting litigation, SBA Section 8(a) for underrepresented minorities and HubZone contracting goals absolutely operate as quotas.

      1. Isn’t this the takeaway from this post, and not that Sessions’ requirements are goals and not quotas?

        1. I inferred that Gail was one of the dissenting votes and believed it was a goal, based on the provided dialogue.

  7. That’s… missing some nuance. Something called a goal may operate merely as an aspirational goal, yes. Sometimes, despite being called a “goal”, yes, it actually operates as a mandatory quota. But simply because the second of those is true doesn’t mean that every “goal” must always be considered a quota. And it is not hypocritical or inconsistent to conclude that a goal operates as a quota in one instance and not a quota in another, depending on the circumstances.

    1. The announcer only shouts “GOOOOAL!” if the ball makes it into the net.

  8. So, sometimes someone has taken a document, encountered the word “quota”, and replaced it with the word “goal”.
    Sometimes a goal is… a goal.

    They’re not always the same thing, and using a single case to represent that they are is… disingenuous.

    They’re goals if the result of not complying with them is further investigation as to why they are not met. They’re quotas if the result of not complying with them is immediately detrimental to the person applying the “goals” to decision-making.

    In actual fact, there are reasons why an ALJ might not reach 800 cases per year. Some are faults on the part of the ALJ (inefficiency) and some are not faults on the part of the ALJ (maybe this particular ALJ got all of the top 700 most complicated cases, requiring the most examination, maybe the Article III courts changed the rules and it took time to work out the changes)

    So, if we take ALJs who don’t reach 800, and investigate why they didn’t reach 800, then 800 was a goal. If we start by assuming that any ALJ who didn’t reach 800 was deficient in performance of their duties, it’s a quota.

    If we say “gee, it would be nice if we could get a few more women to come to this school”, and we ask the admissions folks to examine their policies to see if they’re excluding qualified female candidates, then bringing in more women is a goal. If we say “admissions officers, admit 52.3% women”, that’s a quota.

    Calling a quota a goal doesn’t make it one, and ditto for the vice-versa

  9. More fundamentally, the executive should be responsible for arresting alleged immigration violators, not judging them.

    Have an Article III immigration court to hear any habeas corpus appeals from detainees, if they lose at trial deport them but let them appeal if they’re into that, and get readmitted if the win the appeal.

    How does that sound?

    1. The old ALJs can be reassigned to the new court, transferring them (and the accompanying budget) from the executive to the judiciary.

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