Government regulatory boards oversee many professions throughout the country. In Arkansas, occupational therapists and counselors are regulated by the Arkansas State Occupational Therapy Examining Committee (OT Committee) and the Arkansas Board of Examiners in Counseling (Counseling Board), respectively.
Both boards’ members are appointed by the governor, who is bound by a troubling legal requirement: Racial qualifications are mandated for each board, regardless of professional qualifications.
The OT Committee assists the Arkansas State Medical Board in licensing and regulating occupational therapy. Its five members are appointed by the governor and confirmed by the Senate, with at least one seat reserved for a member “of a minority race.”
Similarly, the Counseling Board, which sets licensing requirements for counselors and therapists, has nine seats, including a vacant position representing the general public. State law requires the governor to appoint at least one “ethnic minority” member to this board as well.
Do No Harm, an organization of more than 16,000 physicians, healthcare professionals, and medical students committed to fighting identity politics in healthcare, has a member who would like to be considered for the senior-citizen seat on the OT Committee. Our client’s member meets all qualifications but is disadvantaged because the race quota is currently unfulfilled, and the member is not a racial minority.
Similarly, the Foundation Against Intolerance & Racism (FAIR), a nationwide nonprofit advocating for equal protection and personal liberty, has a member who is qualified for the public representative seat on the Counseling Board. Despite meeting all qualifications, FAIR’s member is disadvantaged simply due to their race.
It’s wrong for the government to make assumptions about people’s experiences and qualifications based on arbitrary and offensive assumptions about race. And it’s unconstitutional.
No government official should use an individual’s race or ethnicity to determine who gets the opportunity to serve the public. Treating people differently according to immutable characteristics like race violates the very notion of equality before the law. People should be treated as individuals, not as members of a group they did not choose.
Represented at no charge by Pacific Legal Foundation, Do No Harm and FAIR are fighting back with a federal lawsuit challenging Arkansas’s use of race quotas to decide who can serve on these regulatory boards. A victory would ensure that all qualified candidates can compete equally to serve Arkansas residents, regardless of race.
These boards are not Arkansas’s only regulatory bodies that use immutable characteristics to limit opportunities for individuals to serve their state and local communities. Nor is Arkansas the only state to engage in these sorts of unlawful quotas.
PLF’s report on the 20 most commonly licensed professions, “Public Service Denied,” revealed that this unconstitutional discrimination has been codified in 25 states—and that’s just the tip of the iceberg. Without action, the problem is likely to worsen. PLF is dedicated to ending race and sex board quotas in Arkansas and everywhere else the unconstitutional practice is allowed.
What’s At Stake?
- Eligibility for public boards should be determined on the basis of an individual candidate’s qualifications and merit—not the color of their skin.
- Arkansas cannot disqualify individuals from public service because of their race, or any other immutable characteristic.
- Using race quotas to gate access to public service opportunities is unjust, demeaning, and unconstitutional under the Fourteenth Amendment.
Case Timeline
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