The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.
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.
