This panel will touch on various agency approaches to civil rights issues within administrative agencies. These issues will include but not be limited to, disparate impact analysis, former Attorney General Jeff Session’s rollback of various guidance documents. The panel will have added emphasis on the different approaches taken by the Equal Employment Opportunity Commission(EEOC), the Office for Civil Rights(OCR), and the Department of Labor’s Office of Federal Contract Compliance Programs(DOL OFCCP). The panel will in one sense serve as an update on the administration decisions made in the first two years of the Trump administration, and in another sense offer a foundation upon which to predict what the next two years will bring for civil rights claims under the current administration.
Mr. Erik S. Jaffe: All right. We’re going to get started in a couple minutes, or right now actually, so please take your seats. Hello, I am Erik Jaffe. I’m one of the heads of the practice groups at The Federalist Society. And on behalf of those practice groups, and particularly the Civil Rights Practice Group, I welcome you all to this panel “Alphabet Soup,” a discussion of how regulatory agencies under the new administration are doing. I’m here simply to introduce our speakers and then stay out of the way. We have four panelists -- four distinguished panelists today.
The first speaker will be the Honorable Professor Gail Heriot, who’s a Professor of Law at the University of San Diego Law School. Professor Heriot teaches, among other things, civil rights and employment law discrimination. She’s also currently a member of the United States Commission on Civil Rights. Prior to joining the San Diego School of Law faculty in 1989, she worked in various capacities at Mayer Brown, at Hogan & Hartson, as Civil Rights Counsel at the U.S. Senate, and clerked for the Illinois Supreme Court, the Honorable Seymour Simon. We are glad to have Professor Heriot here. And those of you who’ve been to lots of Federalist Society events know her well. And she’s the head of the practice group, for that matter.
The second speaker will be Tim Taylor, who’s the Deputy Assistant Secretary for Policy at the U.S. Department of Labor. Mr. Taylor was previously a litigation attorney in private practice before joining the Department of Labor and started out as a Senior Counselor and then got promoted to Deputy Assistant Secretary for Policy. Prior to starting his private practice, he clerked on the Tenth Circuit for the Honorable Harris Hartz and on the United States Court of Federal Claims for the Honorable Charles Lettow. Prior to that, he was a graduate of Brigham Young University and Harvard Law School.
The next speaker will be the Honorable Ken Marcus, Assistant Secretary for Civil Rights at the U.S. Department of Education. Prior to joining the Department of Education, Mr. Marcus was President and General Counsel of the Louis D. Brandeis Center for Human Rights Under Law from 2011 to 2018. He has also been, prior to that -- was a Staff Director of the U.S. Commission on Civil Rights from 2004 to 2008 and had delegated the authority of the Assistant Secretary for Civil Rights at the U.S. Department of Education under President George W. Bush from 2003 to 2004. He’s a graduate of Williams College and the Berkeley School of Law.
Our final speaker, who’s not here yet but will be joining us midway through this sentence -- he’s apparently stuck in traffic -- is Professor Ted Shaw, who is -- I’m going to get this right now. It’s very complicated -- Julius L. Chambers Distinguished Professor of Law and Director of the Center for Civil Rights at the University of North Carolina Law School. Professor Shaw, prior to teaching at North Carolina, also taught at Columbia University School of Law and was “Of Counsel” to the firm Norton Rose Fulbright, formerly Fulbright & Jaworski. Prior to that, he was the fifth Director-Counsel and President of the NAACP Legal Defense and Education Fund and worked for the NAACP Legal Defense and Education Fund in various capacities for over 26 years.
I believe that is more than sufficient qualification. He has taught at other places including Columbia and Michigan. But when Professor Shaw gets here, you will see that he’s eminently qualified in this area. Without further ado, therefore, the way we’re going to do this is Professor Heriot will start. We’ll have the two agency representatives next, and Professor Shaw will close up. Professor Heriot?
Prof. Gail L. Heriot: Okay. My job on this panel is to critique the administration’s performance on race and sex issues. But let me start by critiquing the country as a whole. I don’t know if you’ve noticed, though I bet you have, things have gotten more tense, more polarized in the last decade. Objectively speaking, at least from my standpoint for women and minorities, things look a lot better, but you’d never know it from what’s being said. On college campuses all across the country, we’re told it is unsafe for women and minorities – literally unsafe. Everyone must undergo training on white privilege, toxic masculinity, and the need to walk on eggshells least someone take offense. The theme is “Stop the Hate.”
I don’t know what you think, but, ladies and gentleman, I live and work on a college campus. It’s the happiest place on earth, and yet we’re told to stop the hate. It’s spread off campus, too. Color blindness is now routinely condemned as racist. Voicing the opinion that race and sex should not be considered in college admissions or in employment is considered violence. And people who disagree are often keeping their heads down. And I don’t just mean conservatives and libertarians there. Old-line liberals are starting to get nervous, too.
What I want to point out today is that this is largely the creation of our law and policies. Sure, culture influences law and policy. But law and policy also influence culture. And over the years, the legal system has made it rational and, in some cases, even lucrative for many Americans to emphasis their race, ethnicity, sex, and sexual orientation and especially the ways in which they feel wronged or harassed on account of those characteristics. In the last few years, it’s been boiling over a lot. It may ebb and flow, but this is not going to go away on its own. Just as Jim Crow had to be dismantled through judicial, legislative, and executive action, the legal supports of identity politics are going to have to be removed.
To accomplish that, administration lawyers are going to have to start standing up for the Constitution and the rule of law, cutting back on the overreach that has occurred in the past, getting rid of well-meaning but counterproductive policies, and enforcing the law as written. There are plenty of smart lawyers in the administration today, but that’s not enough. We need courageous ones. That is not to say that we need bulls in a china shop. We certainly don’t. We need lawyers both with a sense of history and a sense of the perverse incentives that have been created by some of the law and misinterpretations of the law in the last few decades.
Eliminating the supports for identity politics are not the only things that need to happen. Meanwhile, we need to be thinking about how to increase opportunity for those who are economically disadvantaged, regardless of their race, their ethnicity, their sex or sexual orientation. People fight like cats and dogs today over who gets admitted to elite universities because they perceive that to be the only reliable ticket to opportunity. We need to make sure there are lots of tickets to opportunity.
But note, that’s an and, not an or. We have to do both – dismantle the incentives to identity politics and provide that opportunity. The alternative is to continue down the road that we’re on, and I don’t think that’s a good idea. The great history C. Vann Woodward, who’s book The Strange Career of Jim Crow Martin Luther King called the Bible of the civil rights movement, explained that the Jim Crow system was not preordained by Southern culture. There were many strong voices for a more integrated society in the late 19th Century in the South. But state law— laws that should have been held to be unconstitutional from the get go—required segregation.
After half a century of Jim Crow, it became ingrained in the culture and very difficult to dislodge. Identity politics is the same. There is a very large bureaucracy now that is there to administer the many, many policies that we see today. Dislodging the “everything is race and sex” mindset is going to be difficult. And note that Republicans have played a huge role in creating the world of identity politics. Nixon’s Philadelphia Plan requiring federal contractors to hire by race – Republican. Almost all the big Supreme Court cases on race preferential or sex preferential hiring or college admissions, disparate impact too, would have gone the other way without the concurrence of Republican appointees.
That’s Bakke, Johnson v. Transportation Agency, Grutter v. Bollinger, the second Fisher v. University of Texas, Texas Department of Housing and Community Affairs v. Inclusive Communities Project – all required votes by Republican appointees. Supreme Court decisions allowing for private rights of action and money damages under Titles VI and IX, same thing – Republicans. The evidence is strong that Congress contemplated no such thing, and these lawsuits, and the fear of such lawsuits, have become hugely important in fostering identity politics. Problematic legislation passed under Republican presidents; the most serious of those was the adoption of the Civil Rights Act of 1991, which, among other things, made money damages, as opposed to just backpay and injunctions, available under Title VII.
Along with Supreme Court decisions allowing for money damages for Title VI and Title IX cases, this ushered in an era of profitable litigation in the area of sexual harassment. Not only is free expression now in jeopardy because sufficient limitations were not made part of that statute, the over use of sexual harassment litigation has made it harder for women to get jobs in the first place in many areas of the economy. Is it possible that the politics of the time made much of this inevitable? Sure, that’s possible, but that’s not what’s important now.
What’s important now is to protect free expression and to do what we can to unify America. The Trump administration has done better than most administrations on this issue, but that’s a very low bar. Two things of note, I believe, have happened in the very early days of the administration. Both were primarily guided by Attorney General Sessions. First, he issued an order that the Executive Branch must cease and desist from using guidances, usually called “Dear Colleague” letters at the Department of Education, which I’m sure Ken knows about, as substitutes for making law through notice-and-comment procedures. Basically, what the federal bureaucracy had been doing, especially, but by no means exclusively, during the Obama administration was avoiding notice-and-comment procedures, avoiding judicial oversight by claiming falsely, I believe, that new regulations were just interpretations of already existing law. Sessions has attempted to put a stop to that. All honor to him for that.
Second, with the cooperation of Education Secretary Betsy DeVos, he withdrew the Title IX transgender guidance. I am confident that given 30 minutes of time, or maybe even 15 minutes, I can convince any fair-minded person that Sessions’ interpretation of the law was correct. I don’t want to bore you with it right now, but Title IX is broadly permissive in this area. Schools may separate by sex in bathrooms, locker rooms, and showers, by gender identity, by anatomy, or by astrological sign if that’s what they want to do.
Meanwhile, however, the EEOC has no quorum. It can’t meet. That’s not to say that nothing is happening there. That is a large agency with over 1,000 employees. So right now, any marching orders given during the Obama area are presumably still humming along. And this is not entirely the administrations’ fault. Senate confirmations of nominations were very slow. On the other hand, I’m not sure the administration has been taking the EEOC seriously enough. It entered into a deal that consisted of three nominees, and one of those was for the reappointment of Chai Feldblum, who was favored by Senate Democrats.
And let me drop a footnote here and say that I like Chai Feldblum. She has been kind enough to appear on Federalist Society programs. She is smart, and she is knowledgeable about the EEOC. But she leans very, very, very far to the left. But it’s a deal, and it included several people. So whom did the administration pair her with? A non-lawyer, and a very impressive non-lawyer, to be sure. A disabled veteran who ably argues for finding useful work for disabled vets and not putting them on the shelf. Someone like that really needs to be part of the administration, but that’s not the right slot for the EEOC. Chai Feldblum would have run circles around any non-lawyer, no matter how talented, in that position. The deal fell apart. And, as I said, now there’s no quorum.
Over at the Department of Labor, OFCCP, Office of Federal Contract Compliance Programs, they may well be doing some great things. We’ll hear from that in a minute, but I’d like to flag something here. And that is the director, Craig Leen, spoke at a meeting of large law firm representatives last month and told them that the glaring—and that’s a quote—“glaring underrepresentation of women, minorities, and individuals with disabilities at large law firms will be an area of focus for the OFCCP in the upcoming year.” Pay equity at large law firms as well.
So here’s my question for the OFCCP. And that is what if, in addition at least, the OFCCP made it a focus to reconcile it’s goals and timetables regulations issued pursuant to Executive Order 11246? Let’s see if we can’t reconcile those with the Constitution, with Title VI and with Title VII. And I think that will be a very good way for the OFCCP to spend the next year and a half.
Since Ken Marcus is already here to talk about the OCR’s record at the Department of Education, I will defer to him on that. I just want to say this. And that is that his office has acted on the two areas that I believe most needed action – that is due process for students accused of sexual assault, which is a difficult area. And I think the conservatives can disagree on how the best way to deal with that area would be. But they’re acting, and I think that’s great. – And school discipline, where they have withdrawn the Obama administration school discipline guidance, which I consider to be hugely important for the future of the country.
But Ken, I am not going to let you rest on that. All I can say is that there are 100 -- at least 100 other things that need to be done by your office. And if you run out of them -- run out of ideas, just give me a call because I’ve got 100 of them. So in closing, I guess all I have to say is I’ve said enough, and Erik is looking like it’s time for me to sit down. So that must mean it is.
Timothy Taylor: Good afternoon, everyone. It’s great to be here. There’s a very heavy gauntlet that was dropped on the ground here that I’ll need to pick up.
Prof. Gail L. Heriot: In the most friendly of possible ways.
Timothy Taylor: I know. And I do have some things that I think will make Professor Heriot happy. So just a little background on my position, so I’m the Deputy Assistant Secretary for Policy in the Assistant Secretary for Policy’s office. So speaking of alphabet soup, I am the DAS for ASP in the DOL. And what I primarily do is oversee and execute our notice-and-comment rulemakings and also other significant policy decisions that come through our office, very few of which come to mind because we do notice-and-comment rulemaking when we want to undertake large policy projects.
So on my docket, one of those things is OFCCP. So let me give you an overview of what OFCCP has been up to in this administration and what is to come. So for those who may not be familiar with the Office of Federal Contract Compliance Programs, the agency administers three authorities governing federal contractors. So again, it’s federal contractors and subcontractors. If you’re not in that universe, OFCCP does not apply to you.
One of them is Section 503 of the Rehabilitation Act, which prohibits discrimination employment on the basis of disability; 38 U.F.C.§ 4212, part of the Vietnam Era Veterans Readjustment Assistance Act of 1974, or VEVRAA—more alphabet soup—which requires affirmative action and certain types of outreach to veterans; and Executive Order 11246, which requires affirmative action and prohibits, expressly, textually, on the face of the order itself, employment discrimination on the basis of race, color, religion, sex, sexual orientation, gender identity, and national origin.
Now, the title of this conference is the “Regulatory Reform Report Card,” so we’re about halfway through. So this is our midterm report card. The final is still to come. We are still studying, but let me talk about two particular areas of reform going on in OFCCP.
So the first is a series of efforts to make OFCCP more transparent, more cooperative, and more committed to the rule of law. So let me give you a limited set of examples, just seven, of what OFCCP is trying to do to make itself more transparent and more rational and fair in its dealings with contractors. So here’s one. When OFCCP examines a contractor’s practices and believes discrimination may exist, it no longer can go straight to a notice of violation, which used to be the case in some regions of the country. That was a practice.
In every case, uniformly across the country now, OFCCP must first issue a predetermination notice, giving the contractor a chance to respond to those findings. And that response is, in fact, reviewed and reviewed carefully in the department.
A second one, when OFCCP requests supplemental information during a compliance review, it now has to state why it needs more information. That didn’t used to be the case.
Third, OFCCP rescinded guidance from 2013 stating that it would, quote, “remedy compensation discrimination regardless of whether individual workers believe they are being underpaid or whether OFCCP has any anecdotal evidence,” close quote.
Now, OFCCP is less likely to pursue such a case unless the physical evidence is exceptionally strong, and that is all part of a holistic careful review of the contractor’s practices across the board. And that in a directive called Directive 2018-05. It’s very detailed and transparent on how OFCCP goes about doing it’s directives and its compliance reviews.
Fourth, OFCCP is setting up an ombudsman service and strengthening its help desk service to provide contractors a way to voice concerns about field staff audits.
Fifth, OFCCP is setting up an opinion letter system. We’ve had this in Wage and Hour for a long time. We also have this in OSHA, where you can write in to OFCCP, give them a factual situation and ask, “Is this compliant or not?” And they’ll respond and give you advice.
Sixth, OFCCP now posts a list online 45 days in advance to contractors that are being selected for compliance evaluation.
And then seventh, OFCCP has undertaken an aged case reduction initiative. Some of the cases that OFCCP is still working on are more than five years old, and there’s a concerted effort to get those moving. So that’s probably great news for your clients. It may be less great news for your associates who want to bill and bill and bill in perpetuity. We’re trying to move those cases along much more quickly.
The other area of significant reform for OFCCP is in the rulemaking space. OFCCP works very closely and collaboratively with my office as we put these together. So again, noteworthy in itself, we are preceding by rulemaking when we’re pronouncing policy that effects the rights of private parties. We don’t do rulemaking by website or by memo or by guidance or by test-case litigation. We want to give the public notice of what we’re doing and follow proper APA procedure.
So we have two OFCCP rules pending. The spring regulatory agenda is coming out fairly soon, I believe. Pay attention to see if there’s more coming. The first regards healthcare providers and illustrates our new approach. So if any of you are familiar with OFCCP or have clients or have represented folks in this space, you might be aware that about a decade ago OFCCP asserted, for the first time in litigation, that it had jurisdiction over Tricare healthcare providers. These are doctors, dentists, people in just your regular commercial office building, in your strip mall, any healthcare provider with 50 or more employees. There’s jurisdiction over them under the theory that they are government subcontractors because the Tricare program itself is a government program.
So OFCCP succeeded in a case on that before a Department administrative law judge in 2010. It almost immediately issued a non-notice and comment directive to try to cement that position. And that move lead to legislation, congressional hearings, and the rescission of that directive 16 months later. And a moratorium on enforcement, vis-à-vis Tricare healthcare providers, has been in play since 2014. And we’re now in the process of preparing a notice of proposed rulemaking that would include limiting and otherwise altering the obligations of Tricare and other healthcare providers. So that will be coming from us in due course.
Our second pending rulemaking regards the OFCCP exception for employers of faith. So similar to Title VII, Executive Order 11246 permits religious corporations, associations, educational institutions, and entities, and societies to take faith into account in their employment decisions. Okay. This is part of the original Civil Rights Act of 1964. It’s been long-standing law, and there’s plenty of case law about it. It’s been going on for decades. And we’ll be proposing an update to that regulation in light of recent Supreme Court decisions and executive orders that have addressed the broad freedoms and anti-discrimination protections that must be afforded to institutions and people of faith.
And those decisions most prominently include Masterpiece Cake Shop, Trinity Lutheran, Hobby Lobby, and Hosanna-Tabor. This rule has been presaged by a recent directive to OFCCP staff. This is Directive 2018-03. Again, you can look it up on our website. And this was a directive to OFCCP staff instructing them to give the due regard demanded by law for religious organizations and people of faith. So citing this recent case law and recent executive orders from this administration, OFCCP instructed staff -- and a lot of this is quoting case law or quoted from the executive orders.
But the following things: they cannot act in a manner that passes judgement upon or presupposes the illegitimacy of religious beliefs and practices. And they must proceed in a manner neutral toward and tolerant of religious beliefs. They cannot condition the availability of opportunities upon a recipients willingness to surrender their religiously impelled status. They must permit faith-based and community organizations to the fullest opportunity permitted by law to compete on a level playing field for federal contracts. And they must respect the right of religious people and institutions to practice their faith without fear of discrimination or retaliation by the federal government. So this rule also is still under development. But we expect it to address, among other things, which organizations are eligible for this exemption.
And again, we expect the proposed rule will clarify that the exemption protects more than churches in the strict sense and includes other organizations that include faith in their purpose and activities. So that’s an update on some of the things that OFCCP has been working to reform and improve, in conjunction with our policy office. And I look forward to questions and comments from all of you and from our fellow panelists. Thank you.
Hon. Kenneth L. Marcus: Afternoon. Erik, I appreciate the introduction, although the title is slightly out of date. Any of you here during lunch? Is John Eastman here? John’s more interested in navigable waters? Seriously?
Mr. Erik S. Jaffe: He left for a plane.
Hon. Kenneth L. Marcus: I see. So when he was discussing the transgender policy during the Obama administration, he renamed the position I know hold, telling you that it was the Deputy Under-Assistant Whoever. So now, I need new business cards. And you’re all complicit because you’re still laughing about it. Thank you very much. Gail, in a better world, you would be doing my job, and I would get to gently critique you. But it is what it is. So let me tell you a little bit what we’re up to at OCR. Basically, what the President and Secretary told you we would do. We are deregulating and we are enforcing the law.
And when I say we are enforcing the civil rights laws, what I mean is that we are enforcing the laws that Congress passes, as written and in full, no more and no less. Now, that doesn’t mean that we’re just pushing the pendulum back and forth between overenforcement and underenforcement. It means that we are taking the statutes and the regulations and enforcing them, without overreaching through the “Dear Colleague” letters to which Gail referred, and simply trying to make sure that we get the facts and the law right. A few examples, Gail’s mentioned the Title IX regulation.
I can’t speak to its contents because it’s now in formal rulemaking. But Secretary DeVos has indicated that the rule by letter is over. And it is important that we are using the formal process because we are making sure that we use the APA. It is also important, as the Secretary has indicated, that we are returning to due process in Title IX. The time of the kangaroo courts on campus is over.
Second, Gail briefly mentioned discipline, and I think that this is an important matter. It’s the result of the commission that the President established on safe schools to deal with, among other things, the racial discipline guidance from the prior administration, which we rescinded because of overreach, because it was not compliant with the APA, and because it went beyond the requirements of Title VI. But beyond that, I’ll tell you that we heard from people who discussed the extent to which having this sort of overregulation pushes institutions, educators and administrators to treat students not as individuals but as numbers because they’re trying to get their numbers right.
Well, civil rights compliance shouldn’t just be about getting numbers right. And it certainly shouldn’t mean treating students differently by race in order to get your racial statistics correct. It should mean treating every student as an individual. And that’s our approach. We continue to enforce Title VI when there is an appropriate allegation of racial discrimination. But we do it not by looking at the statistics and the discrepancies but asking “Was any child treated differently because of their race?” because that is what the statute prohibits.
I’ll give you another example which is affirmative action. I was certainly criticized in the media because the first public facing action I took upon becoming -- what was it? Deputy Under-Assistant Whoever was to rescind the affirmative action policies from the Obama administration at OCR. Not because we didn’t like the policy or liked a different policy better but because we were enforcing not our policy preferences but the law passed by Congress. And this doesn’t mean that there are no longer any policies dealing with Title VI compliance and the use of race in admissions. After all, we have Title VI. We have Supreme Court decisions interpreting Title VI as it applies to racial preferences.
And we know that, as a result of a handful of Supreme Court decisions over the years, it is lawful in some circumstances for higher education institutions to consider race in admissions for some purposes. But we know that there are limits. OCR enforces that. We enforce those limits under the statutes, as they are interpreted by the Supreme Court. So for instance, recently, we entered into an agreement with Texas Tech University Health Center -- Health Sciences Center, under which they agreed that they would no longer use race in admissions because our investigation indicated that they may have been using racial preferences without first not only seriously considering race-neutral alternatives, but also regularly monitoring their use of race to determine whether it’s still necessary or whether there are workable race-neutral alternatives that could meet their lawful objectives.
This isn’t a matter of simply using our policy preference. It is a matter of applying the law. It is a matter of taking seriously the statutes passed by Congress, as interpreted by the Supreme Court and the lower courts. There are lots of other ways every day in which we do this. Some critics would argue this means that we are less serious about civil rights. No. It means we are more serious about the law. It means that we are more serious about the law and the process by which we administer and enforce in a system in which we fall within our role.
And I believe what our record is showing over time is that by enforcing the statutes as written, by protecting students as individuals and not treating them as numbers, we are doing a more effective job of insuring that recipients of federal funds do as they are required to do, follow the law appropriately, and ensure that the rights of all students are protected. Thank you.
Mr. Erik S. Jaffe: So, pardon. It would appear that Professor Shaw is still in travel dismay. So perhaps we’ll get to some conversations between. If I could maybe channel Professor Shaw for a couple seconds at least, I’ll start some of the questioning. And I guess I’ll start in some of the places that Ken left off, which is you said you don’t want to look at the numbers. You don’t want to look at the data and race data. But it seems to me that we use statistical data to reflect a reality that we may not be able to prove otherwise.
And to just say that I have no direct evidence of discrimination when, if you looked at -- school discipline was one of the examples. If 90 percent of the kids are African American and 10 percent of the kids are Caucasian and they seem to be doing an equal amount of the same behavior, why wouldn’t statistics be at least a red flag or some level of proof where you, perhaps, don’t have a smoking gun on personal discrimination?
Hon. Kenneth L. Marcus: Thank you, Ted. I think that’s a good question, in part because it allows me to clarify I did not say -- or certainly did not mean that we do not use statistics. We don’t use them the way they have been done by some administrations in the past. We don’t use statistics as proof. We don’t use statistics as an indication that there is a violation. But they can be useful as targeting. So for instance, if there is a significant statistical disparity in some district and we are engaged either in a compliance review or some sort of an initiative, we’ll frequently use the statistics as a way of determining where should we look.
So for instance, if we have a review in a particular district that has many schools and we’re concerned about discipline issues, we will look to see where there are disparities to hone in on which schools we want to focus on. But then when we get to those schools, we’re not going to just say that because there’s a statistical disparity we think, therefore, there was discrimination. What we say is, because there is a significant disparity, we want to check.
And then we will go through the grueling work of saying we’ll look through the files now. Why is there a disparity? Who are the children who faced unusual discipline and what did they do and why were they treated in a particular way? And we’ll compare it with other files. So I would say that statistical disparities are often useful as a means of targeting investigations. But ultimately, if our objective is to address discrimination, they tell us where we can look, but we have to do the hard work of finding out was there, in fact, a violation or not.
Mr. Erik S. Jaffe: Professor Heriot?
Prof. Gail L. Heriot: I just want to say that I agree with both Erik and Ken here that, of course, when statistics show a disparity, that can be a good reason to look carefully. But we also need to remember that we’re going to find disparities concerning some group just about everywhere. Take Title VII under Griggs v. Duke Power Company. Under Griggs, the Supreme Court said—and I think it was quite a reach, but they said it anyway—that Title VII forbids not just intentional discrimination but also disparate impact. What they didn’t realize at the time was that just about every job qualification that you can come up with -- in fact, I have said this before, and I’ll say it one more time in a large room filled with Federalist Society attorneys.
If you can come up with a single job qualification that does not have a disparate impact on some group, whether it’s a racial group, a national origin group, based on sex, based on religion -- there are a lot of protected groups out there. If you can come up with a single one, I will donate $10,000 to your favorite charity. I thought, for example, that maybe left-handedness or right-handedness would be one of them. And I considered that one for a while. But it turns out that some ethnicities and some religions are particularly inclined to try to train their children out of being left-handed. And therefore, even left-handedness and right-handedness is not randomly out there.
And of course, some employers who have machines of some kind are going to want left-handed or right-handed employees, as the case may be. You’d be just shocked at some of the odd disparities you’ll find. Others are like so ordinary that now we’ve forgotten. Have you noticed that if you look for somebody who has experience in the manicure industry that they will be disproportionately Vietnamese-American? That is the case, and it’s not just a little bit disparate. It’s woo. It’s way, way disparate. And the reason for that, weirdly enough -- sometimes it’s like serendipity.
Remember Tippi Hedren, the actress in The Birds? When I think Reagan was governor of California at the time -- but right after the fall of Saigon, there was a refugee camp in California. And she was invited to go there and try to cheer the people up. And she had a great manicure, as Hollywood stars did at the time. But average women didn’t because it was too expensive. And it was admired by some of the young women.
And Ms. Hedren paid for them to go to the manicure school, which is just two weeks or so. It’s a short program so you could get a job relatively quickly. And they then got jobs. They paid for their sisters, their cousins, whoever, and the rest is history. And that’s how these things happen sometimes. You get disparities that are very, very odd, but there they are.
Mr. Erik S. Jaffe: I’ll continue to channel Professor -- unless you want to comment on that one. I have one for you, more directly to you.
Timothy Taylor: I’m left-handed, so I just wanted to -- sure. Go ahead.
Mr. Erik S. Jaffe: I was thinking sort of standard deviation from the average height of your group might be a job qualification. I want you to be one standard deviation above the average height of your group. I assume that might --
Prof. Gail L. Heriot: It would have a huge disparate impact.
Mr. Erik S. Jaffe: Of your group, though. So it’s just deviation from your own sub-group. There you go. See. Some people got it. So the average Vietnamese person is X height, and you need to be a standard deviation above that if you’re Vietnamese or if you’re Caucasian or if you’re African American. Anyway. It’s just a question of whether different groups have tighter or wider groupings.
Prof. Gail L. Heriot: That will then have a sex -- you’d done it just for ethnicity, and now you’ve got to apply sex. And now the disparate impact is back.
Mr. Erik S. Jaffe: Fair enough. I had a question about—again, channeling—you had said you were going to extend the people of faith exceptions beyond religious entities to people -- to individuals. And I just want to know how that plays out on things like subcontractors that might like to hire people of their own faith but don’t have a particular religious obligation to do so.
Timothy Taylor: Okay. Maybe I should clarify. So the religious exemption in Executive Order 11246, which is the same one you find in Title VII -- this is apart from religion as a protected status for individuals. So the religious exemption says it’s -- again, it’s for—this is just a direct quote—“religious corporations, associations, educational institutions, and societies.” So the really question is what do those terms mean. And you have pretty -- you had a lot of courts grapple with this question. There are several cases in the Ninth Circuit.
There’s one in the Third Circuit. The most recent comprehensive treatment that you’ll find is from 2007. It’s a case called World Vision. Three-way split on what those terms mean. But again, the prevailing view in the circuits is that it goes more beyond -- it goes beyond churches, per se, to include other organizations in which religion is an important part of what they do.
Mr. Erik S. Jaffe: I notice now Professor Shaw has joined us. Thank you. I’ll give you your time. We were -- I was trying to channel you, briefly, and pose questions to the co-panelists. But I’ll let you channel yourself. The floor is yours.
Prof. Theodore M. Shaw: So let me first apologize for getting here when I did. I had told Micah that I was in a bad car accident a couple of days ago, and I’ve been trying to sort out what it meant for my family, car, my kids and everything else. And tried to get a flight up here this morning, couldn’t, and so I drove. But it’s no easy drive from Chapel Hill to Washington. So here I am.
And I’ve said this at some of the other Federalist Society events that I go back and forth on whether or not this is something I get so excited about or whether I leave sometimes, as I do, in a huff. But I am someone who still believes that it’s important for people who disagree to talk with one another. But perhaps even less altruistically --
Well, don’t clap yet because, less altruistically, I simply refuse to cede any spaces to my colleagues here at The Federalist Society and on the panel, some of whom I know better than others -- I refuse to just give any spaces in which they go and channel. So that’s the less altruistic motivation here. Having said all that, I do apologize to my fellow panelists for missing their presentations, although I’m familiar with some of them. We’ve danced before, and I think we’ll dance again.
As the country is really consumed with what’s going on at 1600 Pennsylvania Avenue in the White House, in the meantime, there are folks in this administration, particularly when it comes to civil rights, who are busy. And they’re doing things that those of us from the civil rights community, and what has long been the civil rights community, disagree with very strongly. And there’s a lot of damage, from our perspective, being done. So while the focus here, I think, is on the issue of -- or the issues, I should say, of disparate impact, the civil rights policies of this administration goes well beyond that. So I’m going to say just a few words about them, as I understand them to be. I don’t know how much you’ve covered or exactly what you’ve covered. Certainly, the belief on the part of conservatives that disparate impact theory is an illegitimate endeavor is something that I still struggle to understand on your side.
That is to say that people who believe that disparate impact theory is an illegitimate part of the struggle against discrimination -- I would respond, and have responded many times, by saying that disparate impact theory has been around for a long time, since the 1960s at least, with respect to employment discrimination law. And frankly, it’s been around a long time, also—not quite as long—with the respect to the interpretation application of the Voting Rights Act and other parts of civil rights law. The idea being that if there is disproportionate impact on a part of a -- as the result of the application of a particular statute or a policy or a practice, the question then becomes whether or not that disparate impact is necessary to do what is being attempted to do, whether or not it has an unnecessary impact which harms members of minority groups or other groups of people unnecessarily.
And if it does, then why be so tied to it? Why not adopt the policy and a practice that does the least harm? Now, I suspect what I’ll hear is your belief that it does do harm. And we could grapple with that. But it comes from, for example, in the employment sector with respect to Title VII, as you well know and you probably mentioned before, a case that demonstrated that an employment practice, a test, for example, that was given that had an unnecessarily disparate impact on African Americans; that that test should be struck down if it isn’t related to a job necessity. It shouldn’t be used.
But we can go on and look at a number of other practices and policies. I know what the administration is doing across the board. I’m very concerned about the fact that the Department of -- well, HUD has indicated that it doesn’t desire to do housing discrimination cases, as I understand it. It doesn’t want to bring those cases, I think, that the Secretary of HUD has indicated that he believes that the law won’t change or shouldn’t be used to change certain practices. That’s deeply troubling. This law that was enacted, the Fair Housing Act, in 1968 after the assassination of Martin Luther King, Jr., and disparate impact theory has been part of the law that’s been applied there.
I think about what’s being done with respect to the Justice Department announcement about consent decrees, particularly consent decrees involving police departments that engage in practices that can cost people their lives. And the agreements that were made between the City of Baltimore, for example -- but other municipalities and their police departments and the Justice Department under prior administrations, I’m deeply disturbed about that, particularly when cities like Baltimore and other municipalities say, “We want these consent decrees in place.”
I’m deeply concerned about OFCCP policies, the Office of Federal Contract Compliance and the transfer of functions to the EEOC and how the EEOC is failing to enforce some of these provisions.
So I could go on and on, but I suspect that, because I’m here at the end and I’ve missed so much, that maybe the best use of my time is to say something to you as lawyers who may have different points of view. Consistent with what I said about talking to people with whom I disagree, this is, as we all know, an extraordinary time. I have been hoping, against hope so far, that conservatives, generally speaking, because I think -- and I always say that I think there’s a difference, and there should be a difference. This is true on both sides -- but between people who are ideologically conservative and people who are intellectually and instinctively conservative. And I certainly don’t have problems engaging with people who are the latter but who are open minded.
But I think this is a time when it’s so important that, whatever people’s believes and ideologies are, that we agree on what is necessary to save our country and our system of government from going to a place where it departs from the best principles of our country, however much we may disagree. You in The Federalist Society may think that it’s worth it to make the deal with this White House, with this presidency. I think it’s a deal with the devil, but if you get judicial appointments out of it, if you do get, I know that’s very -- that’s a powerful incentive. But on the other hand, I think there’s a lot that’s being done that’s damaging our democratic system, as we know it.
And frankly, if anybody’s going to stand up right now, even if we are not all in agreement, it’s lawyers. Conservatives, I think, can play a role right now in this challenging and difficult time that will outlast this administration but a role that will save some very important principles for our country, save the Justice Department—I started off my career there—to be an institution that serves the American people. And I’m sorry about that -- and a Justice Department, an attorney general who serves the United States, the people of the United States, not that serves the President.
So I know that I’m probably going to walk out of here and you all will be shaking your head and say, “This, this” -- I started to say young man, but I’m not young anymore. “But this is a naïve man. We have power now. We have judicial appointments. We’ve gotten control of the Supreme Court for decades to come.” Now, how you’ve got it is another thing. “But we’ve got it.” And however you have to get it, that’s what you do. I beg you to think about our system of governance, our balance between the branches, the balance of power, checks and balances.
I beg you to think about the law and, in particular, not to do what is being done in many places right now, which is gutting the substance of civil rights law. I don’t think that it’s in the interest of the country. So I disagree with a lot of what you’re doing. I hope that you can think more about this and not to gut the balance of what’s left in the corpus of civil rights law. If you don’t do it though, it’ll be your legacy. It’ll be the legacy of this administration. You’ll live with it. It won’t be a good thing, and I think that there’s a price that we all pay.
Mr. Erik S. Jaffe: Thank you very much, Professor Shaw. I guess I’ll give a brief opportunity for the two administration officials to comment on how they think their offices are measuring up to that critique. And then maybe we can open it up to -- give Professor Shaw a chance to respond and then maybe open it up to questions.
Hon. Kenneth L. Marcus: Sure. There were some smaller pieces having to disparate impact and other things that we could discuss, but I think I’d like to say a word -- well, first of all, I’d like to say a word of appreciation for Ted Shaw.
Prof. Theodore M. Shaw: Thank you, Ken.
Hon. Kenneth L. Marcus: I’m grateful that you are physically okay after that car crash, and I’m also grateful about your participation in a civil dialogue with people with whom you disagree. And I think that that is a model.
Prof. Theodore M. Shaw: I appreciate that, Ken. Now I know what’s coming.
Hon. Kenneth L. Marcus: The message that you have given us is, although well-articulated, is one that we have heard before. It is the notion that somehow this president has given a choice to conservatives: either support the administration or support democratic principles of some sort. And yet for people who have been here all day long, we have heard example after example after example of strengthened democratic processes through a greater commitment to the rule of law under this president.
And we have heard example after example not just of policies that we might or might not prefer but of a greater fidelity to broader principles -- principles that you may or may not agree with or principles that you might interpret differently than we do. But they have to do with the importance of complying with law, of constitutional principles, of separations of power, etc., etc. Again, you may agree; you may disagree. But for those of us who believe in the rule of law, for those who believe in the importance of limited government to protect a free society, what we have in this administration is not just opportunities that people have on an individual basis.
What we have in this administration is not just record improvements in the economy and other tangible benefits. But what we have here is a commitment to an approach to the Constitution and to the law which brings back the importance of democracy and of rule that follows federalist principles. So for us, it’s a different set of outcomes, but it is a greater fidelity to the principle of the Constitution and law.
Prof. Theodore M. Shaw: So I could engage in a very long -- actually, I couldn’t because you wouldn’t let me. Time is up. But I could engage in a very long critique of the fidelity to the law that you talk about. I don’t see it coming out of the White House. I don’t think this is a president who understands the Constitution, much less the relationship between the Executive Branch and the Legislative Branch. It’s a president who’s attacked the Judiciary -- particular judges which destabilized the belief in law, if we want to talk about fidelity to law. I could go on and on about that.
I’m thinking about the practices and the policies, with respect to this gathering, that are undercutting, even as we sit here -- undercutting civil rights at the Department of Education or that has been enforced by the Department of Education – the failure or the decision to fail to enforce -- not to enforce disparate impact theory in education. I’m think about, as I said, a Cabinet secretary who is uninterested or refuses to bring housing discrimination cases because he believes that, for one reason or another, they are ineffective or it’s not a good use of resources or time when housing discrimination is a, and remains, a powerful force in shaping opportunities in our country, not only with respect to where people live, where they’re allowed to live, but also when and where they are next to opportunities for employment, education, etc.
I take strong issue with your representation of what this administration is doing with respect to those kinds of issues. I think it’s gutting opportunity, and we do see it differently. And I suspect we’ll continue to, and that my plea falls on deaf ears.
Mr. Erik S. Jaffe: If we can keep it quick, there’s still a little bit of time.
Timothy Taylor: Sure. Mr. Shaw, again, thank you for being here with us. I echo your remarks and I think everyone’s remarks that it’s wonderful good to have a civil and measured dialogue on these things. For Department of Labor and for OFCCP, I don’t think the numbers match this narrative. OFCCP, last year, collected $26 million in findings related to remedying discrimination, which is actually the highest they ever have. Since this administration has come in, our recoveries have actually been higher than previous years. And the percentage of contractors in which there have been findings of discrimination, traditionally all the way back to about the Clinton administration, have bounced around 2 percent.
They’re up around 4 percent under this administration because, again, we’re engaging in reforms to more effectively target where discrimination exists and to get away from auditing folks where there are not problems. So I think, at least in this administration, what we’ve seen at OFCCP is a greater commitment to rooting out actual, genuine real discrimination where it exists and remedying those situations.
Prof. Theodore M. Shaw: Well, unless I’m mistaken, and I stand ready to hear your response to this. On May 23 of 2017, Trump’s Fiscal Year 2018 budget proposed elimination of the Office of Federal Contract Performance programs and transferring those functions to the EEOC. And this would have impeded the work of both the OFCCP and the EEOC, as each have distinct missions and expertise and would have, thereby, undermined civil rights protections that employers and workers have relied upon for almost 50 years.
Timothy Taylor: So I can’t speak to the second half of that, as to whether that would undermine or not undermine anything. But I can tell that right now, today, on the third floor of our building, there is an OFCCP.
Mr. Erik S. Jaffe: If I can let Professor Heriot get a word in, and then maybe we’ll take some questions.
Prof. Gail L. Heriot: Oh, I just wanted to say very briefly that one of the things that I love about Ted is that we tend to agree on the big things but not so much on the little things. But you seem to be channeling Tocqueville when you said, “If anyone is going to stand up here, it’s the lawyers.” And I just want to say I agree with that, and I also want to say that Tocqueville’s one of ours, you know. He’s one of the conservatives -- and that it’s important that lawyers are indeed the counterweight to political craziness. And that is part of what we are supposed to do.
And that goes back to what I was saying a minute ago about I hope that administrative lawyers -- administrational lawyers will be courageous. Sometimes, that’s going to mean opposing other conservative lawyers within the -- and non-lawyers within the administration. But sometimes it’s going to be, as I was talking about earlier, a counterweight to a political craziness that we’re seeing on campus now, that I think is very much wrapped up with identity politics and with some of the policies that the federal government has adopted over the last 40 years that I would like to see changed.
Mr. Erik S. Jaffe: So do we have somebody with a microphone floating around in here somewhere? If not, just speak up. The gentleman right there.
Questioner 1: Gail made the comment earlier in regards to --
Mr. Erik S. Jaffe: Project, as best you can. I don’t know where the mics are.
Questioner 1: Gail made a comment a while ago referencing the Office of Federal Contracts that it was pushing through which Trump appointed directors, not merit and discrimination minded group -- identity law firms. Comment from Mr. Taylor?
Prof. Gail L. Heriot: Yeah. I think that’s yours, Mr. Taylor.
Unidentified Female: Can you repeat the question?
Mr. Erik S. Jaffe: So the question was he noted Gail’s comment about discrimination in law firms, and that was going to be an emphasis of the OFCCP. And his question was, well, what about that if you’ve been trying to get away from group identity politics? I think that’s a fair summary of it.
Timothy Taylor: So I’m not the director of OFCCP. I’m in the policy office. I can’t speak to any one particular statement made by anybody outside my office. But I would encourage you to look at what OFCCP is actually doing, what it has in black and white in its recent directives. It’s very transparent how they’re going about their business. They’re explaining it in far greater detail than ever before how they select people for contract reviews and how they are, in fact, reviewing those people that they select for compliance reviews.
And speaking generally of the Department of Labor -- because, again, I see regulations and policies from across the entire department and all of our 20-plus different component agencies. And really, we have a two-part approach to how we select and enforce the laws. One is we want to encourage compliance. We actually have stood up, for the first time, in an office called the Office of Compliance Initiatives. And their whole job is to reach out to regulated parties, regulated organizations, regulated people of all kinds across all of our component agencies and help them comply with the law.
Those honest actors, those people that are trying to do their best, we want to raise the level of their legal compliance. And then, where you have that small bucket of bad actors, we’re going to enforce the law. Right? We’re part of the Executive Branch, and we enforce the law as it is written, no more, no less.
Mr. Erik S. Jaffe: Gentleman right -- yes, you. Thank you.
Questioner 2: Was Title IX a good idea?
Mr. Erik S. Jaffe: I assume that’s to Ken and perhaps Professor Shaw to --
Hon. Kenneth L. Marcus: I think that Title IX has been a significant part of the extraordinary success story over the last few decades in eliminating barriers to women and girls in education. Eliminating those barriers was much needed. I think that there are lots of reasons why there has been so much progress, but Title IX certainly is a part of that. And I will say, also, that while many barriers have been eliminated, we still have challenges. We still have harassment of women and girls in some places. We still have various forms of discrimination. And I think that we still need to continue to push to ensure that all boys and girls, all men and women are treated equally.
Mr. Erik S. Jaffe: Professor Shaw or Professor Heriot, if either of you want to comment on that? If not, I’ll ask --
Prof. Theodore M. Shaw: Well, I think that’s a good statement by Ken Marcus, and I agree.
Prof. Gail L. Heriot: I agree, too. But I would have to say this. That like some of the enforcement policies under Title IX have not really been in keeping with the act. It’s very difficult, for example, when it comes to, say, athletics. That’s one of the few areas where it’s really hard to determine what’s really equality. And I don’t think the Department of Education has done a great job or the courts have done a great job in determining what really constitutes equality when it comes to athletic opportunities.
I also think that some violations of Title IX get ignored. For example, did you know that a number of mid-level liberal arts colleges in the country, now -- it is routine to discriminate against women? An ordinary case where they’re actually giving preferences to male applicants at the smaller liberal arts schools. That’s not illegal at a private school, but it is illegal at a state school. So for state schools, like the College of William and Mary, that has admitted that they do this -- their admissions director said, “Hey, you know, we’re the College of William and Mary, not the College of Mary and Mary.” And therefore, they discriminate in favor of men because there are fewer men applying there. But that, to me, is just a straight violation of the act.
Mr. Erik S. Jaffe: This gentleman and then this woman, in that order. Following a couple.
Ken Masugi: Ken Masugi, I work at the EEOC under Clarence Thomas and then ended my government career under Charles James at OFCCP, Charles’ secretary. But first, I think it’s the case that it’s white women who’ve benefited the most from the legal civil rights revolution. But I question this. There’s always been a tension, I think, between the OFCCP and the EEOC in terms of which is going to be the lead civil rights enforcement agency. And part of that is who can drive the numbers -- that’s who can make the best use of systemic cases, whether it’s under Democrat or Republican administration.
And I don’t know what the situation is today at Labor versus EEOC because one appears to be a basket case – guess which one. But the other appears to be zeroed out in funding. So I’m not sure whether there’s a strategy here or whether it’s, again, this tendency of Republican administration to put civil rights on the back burner.
Mr. Erik S. Jaffe: So is the question -- to repeat for those in the back --
Ken Masugi: To the two agencies.
Mr. Erik S. Jaffe: -- so the question is is there a strategy on how to balance out EEOC versus Labor in terms of who takes the driving order?
Timothy Taylor: Regarding the EEOC, they’re an independent agency. They’re doing what they’re doing. I don’t have a whole lot of insight into any particular interactions that we’re having with them, vis-à-vis OFCCP. I can tell you that there is strategy at OFCCP. The use of systemic cases is still important. We have limited resources, right? So it makes sense in any enforcement context that you want to go where you’re going to find significant violations and be able to enforce the law in an effective way.
Prof. Theodore M. Shaw: I can’t resist saying that Charles James -- you called out his name. He and I were classmates in college, which is apropos of nothing. But I wanted to acknowledge that. I do want to say that one of the great concerns I have -- I heard Gail say about -- what she said about men and a thumb on the scale in their favor. It is often an unspoken reality that -- and it’s not just because they aren’t applying, although, there may be some of that dynamic. But women have been, in many ways, outperforming men academically in certain areas. And nobody talks about that a whole lot.
But I wanted to critique the Department of Education Office of Civil Rights, Betsy DeVos of course running it, and the positions that she has articulated on behalf of the administration with respect to, basically, getting rid of the guidances -- no longer following them, with respect to diversity efforts and the efforts to continue to open up opportunity for people of color at selective institutions. And of course, this administration has come down on the side of the lawyers who have sued Harvard University and the undergraduate part of the institution at which I teach, UNC, challenging their efforts to do something consciously to keep opportunities open at those institutions for people who have, historically, been systematically excluded from those institutions.
So it’s one of the great differences that we have with this administration -- on issues that I’ve spent a good chunk of my professional life on -- well, I’ll stop there.
Mr. Erik S. Jaffe: Gail, I think you had something on this.
Prof. Gail L. Heriot: I just have one comment about the OFCCP and the EEOC. There is a proposal out there from a conservative think tank to combine the two into one giant agency. And I just want to go on record saying that’s a terrible idea and that the justification for it is it would be more efficient. After all, they’re both anti-discrimination agencies. They have not been talking to Mr. Madison about this. The conservative ethic is not that we want to have the most efficient agency. We want to have some checks and balances here. You put those two agencies together, and, for reasons that I think Erik won’t let me explain because it will take more than ten minutes, you will exponentially increase the power of that combined agency. So for the record, I’m against it.
Mr. Erik S. Jaffe: Okay. So we’re almost at the end --
Hon. Kenneth L. Marcus: I’m sorry, Erik. I need to respond to the comments about the Department of Education.
Mr. Erik S. Jaffe: Okay. If we can do it quickly, we’re very close to the end.
Hon. Kenneth L. Marcus: I did speak extensively before about this issue, and I’ll just say this one thing about the approach of the Department of Education. We are not rewriting the rules, and we certainly are not eliminating diversity programs. The Court has indicated that there are lawful and unlawful ways of pursuing diversity. What we do is simply to apply the rules. There are probably an abundant number of ways in which institutions that seek diversity of different forms can do it in a way that is lawful and proper. And there, we have no role. Our role is simply to apply the law, as passed and as interpreted by the Supreme Court.
Prof. Theodore M. Shaw: I wish we had more time to engage on that. As I said, this administration has taken a position that is not a pro-diversity position. I think that’s really clear. And I also know that it has said that it’s abandoning the guidances, with respect to diversity, that the office of civil rights had adopted and that were in place when this administration came in.
Mr. Erik S. Jaffe: Okay. If we could just get that last, hopefully very short with a very short answer required.
Questioner 4: I’m looking at diversity with regard to sexual orientation and religion -- being one that a couple, a gay couple in a church is mandated to undergo conversion therapy or be arrested and finish the classes were arrested. Who gets jurisdiction? Did the secular courts have jurisdiction to incarcerate the gay couple, and where in the agencies does this kind of real-world scenario plug in?
Mr. Erik S. Jaffe: So I’ll let Tim talk about this, since his agency’s the only conceivable one that would have something to say about this and give a quick answer. The question is folks were arrested for ordering conversion therapy, I believe, and prosecuted for ordering a gay couple to undergo conversion therapy. And who has jurisdiction, civilian versus secular versus agency adjudicators? Is that a fair summary? I hope so.
Questioner 4: It was the gay couple that was arrested.
Mr. Erik S. Jaffe: Oh, the gay couple was arrested. That’s stranger still. I think I’m a safe bet saying the Department of Labor probably didn’t cover that, and therefore, it’s beyond our panel’s scope. I apologize. But I will say this. Vice President Pence will be speaking shortly. The line is anticipated to be extremely long. And so if everyone could, with some due hast, try to get themselves cleared. They’ll all be screening. I’ve been instructed to urge you on with all due hast. And thank you again to our panelist. Appreciate it. Thank you.