Public Service Denied:

How Discriminatory Mandates Prevent Qualified Individuals from Serving on Public Boards

• Despite having fostered more than 300 children, Stephen Haile was not eligible to serve on the Arkansas Social Work Licensing Board because of his race.
• Despite six years of serving on her district judicial nominating commission, Rachel Raak Law was not eligible to serve on Iowa’s State Judicial Nominating Commission because of her sex.
• Despite being active in local politics and serving on multiple committees, Micah Broekemeier was not eligible to serve on Iowa’s State Judicial Nominating Commission because of his sex.
• Stephen’s, Rachel’s, and Micah’s rights were violated when their states treated them differently based on their race or sex.
• No one should be denied the opportunity to serve on a public board due to their race or sex. Yet, Pacific Legal Foundation (PLF) found instances in 25 states where such unconstitutional discrimination has been codified.
• These mandates threaten the individual right to equality before the law, and without action, the problem is likely to worsen. A vocal group of intellectuals and activists is increasingly asking legislators and governors to factor sex and race into government decision-making. They argue that these aspects of identity fix one’s social status as privileged or oppressed.
• They advocate overt discrimination against individuals for the sake of group outcomes, viewing individual skin color, sex, and other group membership as more important than individual choices, character, and ability.
• We believe that equality before the law requires government decision-making to ignore immutable characteristics, such as race and sex.

​Stephen Haile feels called to serve. He is active in his church and his community and freely gives to those in need. Nowhere is this calling more apparent than in his commitment to disadvantaged youth.

Over nearly two decades, he and his wife Ruth fostered more than 300 children of all ages, from newborns to teenagers, including some with considerable special needs. To Stephen’s knowledge, the agency that placed foster children with his family never hesitated to send them a child due to his and his wife’s race or any other characteristic.

Stephen and Ruth were so noticeably passionate about foster work that in 2017, the Arkansas Department of Human Services Division of Children and Family Services honored them with an award for being willing to take “hard-to-place children” and for their devotion to “child advocacy and reunification efforts with biological families.”^{1 Arkansas News Bureau, “State agency honors foster families,” Swtimes.com, Gannett Co., Inc., May 17, 2017.}

In fact, the Division of Children and Family Services was so confident in Stephen and Ruth’s ability to meet the needs of foster children that it often granted waivers to Stephen and Ruth to accept more children after Arkansas had changed the rules so that at one time, no family could host more than five foster children (and no more than three children under age five).

Eventually, Stephen and Ruth retired from fostering to care exclusively for an infant daughter, whom they adopted, of one of their former foster children. Stephen continued to support foster families by serving on the Foster Parent Advisory Council until it was shut down during the COVID-19 pandemic.

Retired from fostering but still wanting to serve, Stephen applied for a position on a social worker oversight board. Social workers engage with vulnerable and marginalized populations and participate in life-altering decision-making for the people they serve—exactly the circumstances Stephen dealt with as a foster parent.

Stephen would not be considered for the open board position because he is white. Under an Arkansas law adopted in 1981, the Social Work Licensing Board must adhere to racial quotas. Specifically, the board must be composed of “no fewer than two African-American members.”^{2 Ark. Code Ann. § 17-103-201 (2020).} Because the board had only one black member when Stephen applied, the governor was required to appoint a black candidate to meet the racial quota.^{3 Ark. Code Ann. § 17-103-201 (2020).}

When Stephen realized that he was ruled out from serving his community because of his race, he was shocked and disappointed. “I don’t have any qualms with anybody because of their race,” Stephen said. “But then I don’t feel like anybody’s got a right to have any qualms with me because of my race.”

The Fourteenth Amendment to the U.S. Constitution reads in part, “[n]o State shall… deny to any person within its jurisdiction the equal protection of the laws.”^{4 Fourteenth Amendment.} Arkansas’ quota violated Stephen’s rights by treating him differently based not on his qualifications, but his race.

PLF is at the forefront of stopping encroachments on the Fourteenth Amendment’s clear principle of equality before the law, from challenging a federal loan program that allocated benefits along racial lines to tackling laws that demand a specific sex balance on corporate and government boards.

With the help of PLF, Stephen sued the State of Arkansas in January 2023, arguing that the quota violated his right to equal protection.^{5 Haile v. Hutchinson} Stephen asked to be treated as a fully equal individual with the same rights given to any citizen regardless of race.

The Fourteenth Amendment to the U.S. Constitution was ratified in 1868 as part of the Reconstruction, an effort to reunify the nation after the Civil War and recognize African Americans as full citizens. The defeated states of the Confederacy resisted the substance of the amendment but were required to ratify it to regain representation in Congress.

The amendment contains guarantees familiar to most Americans regarding citizenship, privileges and immunities, due process, and equal protection. Equal protection was the basis of Stephen’s lawsuit in Arkansas.

The animating moral principle of America’s founding is that each person is endowed with natural human rights that cannot be taken away by any other person, any majority, or even the state, except by due process of law. The concepts of individual rights and liberties are America’s heritage and are the indispensable basis for its future success. The government is a servant of individual rights, established to secure those rights.

Our Constitution creates the legal structure to guarantee that promise. Yet, slavery persisted in glaring contradiction for nearly 100 years after the Founders signed the Declaration of Independence.

The Reconstruction Amendments, also known as the Thirteenth, Fourteenth, and Fifteenth Amendments, aimed to remedy that contradiction by promising full equality of liberty. As Justice John Marshall Harlan noted in his Plessy v. Ferguson dissent, “[I]n view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.”^{6 Plessy v. Ferguson, 163 U.S. 537, 559 (1896), overruled by Brown v. Bd. of Ed. of Topeka, Shawnee Cnty., Kan., 347 U.S. 483 (1954).}

After learning about Stephen Haile and the state’s violation of equal protection, Arkansas State Senator Missy Irvin and State Representative Richard Womack introduced a bill to strip the racial quota language from the Social Work Licensing Board’s requirements. Just two months after Stephen’s lawsuit was filed, the bill passed through both chambers of the state legislature and was signed into law by Governor Sarah Huckabee Sanders in March 2023.^{7 AR LEGIS 254 (2023), 2023 Arkansas Laws Act 254 (S.B. 264).}

Thanks to quick action by the Arkansas legislature, board candidates must now be judged by their experience and expertise, not their skin color. This protection of Arkansas citizens’ Fourteenth Amendment rights is a great victory for Stephen and everyone else in Arkansas.

When faced with the facts of an unjust law—even one with more than 40 years in the books—Arkansas’s political leaders acted quickly to remedy it.

PLF conducted original research examining membership requirements in all 50 states for boards that license 20 different occupations (see Appendix). Our researchers found that at least 25 states have race- or sex-conscious mandates or quotas for public board membership.

Race- and sex-conscious mandates require an attempt to match appointments to the population of either the state, a local population, or those served by the board. Quotas require a specific count based on race or sex.

Statewide Laws

Public board membership laws in 15 states have race- and/or sex-conscious eligibility mandates that apply to nearly every public board in the state (9 are race-conscious and 13 are sex-conscious).

Board-Specific Laws

PLF also found 63 boards in 14 states (some of which also have statewide laws) with race- or sex-conscious mandates for membership. All 63 mandates include race, while 32 also incorporate sex. Like the statewide mandates, most include language directing appointments to match the population of the state, a local area, or those served by the board. However, eight provisions go further and set a specific race quota. These quotas require one or more members to be of any racial minority, and in three instances, the minority must be black.

These provisions most often apply to state boards of social work (10 states), medical examination (6 states), pharmacy (6 states), and dentistry (6 states).

PLF is still fighting for the rights of others like Stephen who want to serve their communities. In Iowa, Rachel Raak Law, Micah Broekemeier, and Chuck Hurley want to seek elected positions in the State Judicial Nominating Commission. They can’t, however, because state law requires one male and one female commissioner per district. These elections are staggered, and the seat available in each of their districts doesn’t match their sex.^{8 Law v. Gast.}

Rachel cannot legally seek a seat on the commission because the other seat in her district is held by a woman. Micah and Chuck cannot legally seek seats on the commission because the other seats in their districts are held by men. Iowa’s law violates the equal protection guaranteed by the Fourteenth Amendment.

All people should have the opportunity to be considered for service on public boards. No one should be shut out by mandates that prioritize race and sex over other qualifications.

State legislators can vindicate the principle that every individual should be treated equally before the law. They can support individuals such as Stephen, Rachel, Micah, and Chuck by changing the race- and sex-conscious mandates in their own state governments. Legislators can also help fight calls for equity over equality by stopping discrimination on public boards.