State licensing boards often reserve seats for racial minorities. Conservative legal groups are fighting to change that.
When appointing members to Tennessee’s medical board, governor Bill Lee is required by law to consider important criteria — at least nine of the twelve members must be physicians with at least six years of experience and degrees from respected medical schools.
The three other board members, representing the public at large, should be non-physicians and health care consumers with no financial interest in any health care facility. Board appointees should represent the state’s geographic diversity.
Oh, and it is also helpful to be black.
According to Tennessee law, the governor is required “to the extent feasible” to ensure that at least one member of the state’s medical board is an African American.
That provision and a similar provision requiring the state’s chiropractic board to have a “member of a racial minority” are the targets of a lawsuit filed earlier this month by the medical watchdog Do No Harm and the conservative nonprofit Pacific Legal Foundation. They contend that Tennessee’s racial requirements lead to “blatant racial discrimination” against prospective board members, serve “no legitimate government purpose,” and violate the 14th Amendment’s equal protection clause.
A spokeswoman for Lee told National Review that they can’t comment on pending litigation, but generally the governor does not philosophically support identity-based requirements for the makeup of state boards and commissions.
The lawsuit, filed in U.S. District Court on November 7, is the latest in a string of legal challenges Pacific Legal has made over the last couple of years to strike down what it deems to be illegal race and sex discrimination involving government licensing boards. They’ve filed similar federal lawsuits challenging identity-based board requirements in several other states, including Alabama, Arkansas, Louisiana, Montana, and Minnesota.
Last fall, the organization published a report that found that at least 25 states — including many red states — have race- and/or sex-based requirements for public boards.
That is almost surely an undercount, said Joshua Thompson, who directs Pacific Legal’s equality and opportunity litigation. Their initial examination was never intended to be exhaustive; they only looked at 20 professions and didn’t include city boards, Thompson said. They’re in the process of compiling a more comprehensive list.
“There are probably hundreds of these boards across the country,” he said.
Pacific Legal’s efforts to challenge discrimination on public licensing boards is part of larger fight by a patchwork of conservative and libertarian-leaning legal firms and civil rights activists to end the use of racial preferences across broad segments of American life. Their efforts were emboldened by last year’s Supreme Court decision in the Students for Fair Admissions cases, which held that it is unconstitutional for colleges and universities to consider a prospective student’s race in their admissions processes.
In the wake of that decision, conservative firms have challenged identity-based preferences in everything from admissions to elite public high schools to hiring and promoting workers to the awarding of government grants, contacts, and public benefits.
At the federal level, president-elect Donald Trump’s incoming administration is expected to take aim at the diversity, equity, and inclusion bureaucracy built up under President Joe Biden. Trump has already begun discussing his plans to weed out “Marxist” DEI bureaucrats from the nation’s colleges and universities.
While discrimination for licensing-board membership has for the most part been under the radar — the positions are typically unpaid and are unlikely to make or break an applicant’s career — it is still problematic, Thompson said.
“We should hold our government to high standards and we should require the best of our public officials. Treating people differently on the basis of skin color is not that,” Thompson said, adding that “everybody should be concerned about the effectiveness of our institutions when race is a factor.”
The history of identity-based requirements for Tennessee boards dates back more than 30 years, according to the Do No Harm and Pacific Legal lawsuit.
In 1988, the American Association of Retired Persons, now the AARP, backed a bill that would require the governor to appoint at least one person 60 or older to more than 70 boards. It was during that process that racial mandates were tacked on.
“Throughout the legislative discussions, there was no mention of the governmental interest behind imposing a race-based classification” for state boards, the lawsuit says.
In addition to the age- and race-based requirements, the governor is also, “to the extent feasible,” required to ensure the medical board has a female member.
Both the medical board and chiropractic board have openings, and at the moment neither has a member who is a racial minority, the lawsuit states. Do No Harm says it has members who are “qualified, ready, willing, and able to be appointed” to the boards, but will almost surely be denied the opportunity to serve because of their skin color.
Do No Harm and Pacific Legal previously sued Tennessee over a race requirement for its podiatry board, but they lost in court because the seat in question was quietly filled before the suit was filed and the judge ruled there was no injury. They’re appealing that decision.
Thompson said Tennessee’s laws require “a racial thumb” on the scale in appointing board members. Even if the medical and chiropractic boards did have minority members, race would still likely be a factor in selecting new members when it shouldn’t be, he said.
“Race is sort of always in the milieu here and the governor sort of has to always think about it to ensure compliance with the laws,” Thompson said.
Dr. Stanley Goldfarb, Do No Harm’s executive director, said that in addition to excluding qualified candidates for consideration to serve on boards, racial preferences for medical boards ultimately undermine minority practitioners and minority communities.
“The biggest problem is, there are plenty of black doctors who would be perfectly suitable and should be appointed to state medical boards,” Goldfarb said. “And yet, it turns out that if they do end up serving on the board, they’re undermined because everybody looks at this and says, ‘Well, they’re just there because they’re black.’”
Goldfarb said that racial discrimination is “just not right” and “not legal.” But he acknowledges that many of the lawmakers who wrote racial preferences into licensing board requirements in the 1980s and 90s may have been well-intentioned.
“They may have felt particularly that because of past racial legacies that they needed to do something to benefit people, they needed to make up for past discrimination,” he said. “But this is the consequence of the Ibram Kendi business of, we have to make up for past discrimination with present discrimination and present discrimination with future discrimination. Anything that somebody achieves becomes completely undermined.”
Pacific Legal has already had some wins in its fight against public board discrimination.
Last year, the Arkansas legislature passed a law, which was signed by Republican governor Sarah Huckabee Sanders, barring race-based requirements for serving on the state’s Social Work Licensing Board. And earlier this year, Iowa’s Republican governor Kim Reynolds signed a bill that ended decades of gender-based discrimination for state boards.
In Alabama, Republican governor Kay Ivey has agreed that reserving seats on the state’s real estate appraisers board is unconstitutional, but the law remains in place. Pacific Legal challenged it earlier this year.
“They’re trying to say the lawsuit should go away because they’re not [enforcing it].” Thompson said. “Our point is, well, it’s on the books. Even if you as a governor won’t enforce it, the next governor might. So, let’s get it struck.”
In the Alabama case, Laura Clark, a stay-at-home mom who also serves as the interim president of a conservative legal group, argues that she was denied consideration for a spot on the state’s real estate appraiser board because she is white. According to the 1990 statute creating the board, at least two members “shall be of a minority race.”
Clark, who is a lawyer, applied for an at-large seat reserved for a non-appraiser. Ivey appointed a black real estate agent to the board instead.
“I think it’s kind of a shame for the community to have people be told that you don’t qualify for something because of a characteristic that you cannot help,” Clark said.
An Alabama association of black real estate professionals is defending the board’s racial quota, pointing to the state’s history of housing discrimination. Marcus Brown, who heads the association, told the Washington Post that home prices in black neighborhoods are often significantly lower than similar homes in white neighborhoods in part because of the ingrained bias in real estate appraisals.
“I just think we should be on the rights side of history with this,” Brown told the Post.
But Clark said she believes “the way to fix discrimination is not with more discrimination.”
“I think it is discrimination to assume that white people would not have the interest of black people at heart,” she said. “They are presuming that because I’m white I would automatically do thing that would be bad for the black community.”
“In essence, the implication is because I’m white I would be racist,” she said.
Thompson said that there is “no real justification” for having racial-preference requirements for public boards, calling them “anachronisms of a past time.” He said the era of legalized identity-based discrimination needs to end.
“I really believe we can end it in the next five to ten years, but it’s going to take work, it’s going to take lawsuits to strike these out of the codes,” he said. “And that’s what we’re here to do. We’re here to make that difference and to realize a future where the government isn’t discriminating against people on the basis of race.”