Scholar sues Arkansas for discriminatory racial quota law—and hopefully, this will be the last
On Wednesday, PLF filed its third lawsuit against the State of Arkansas for a discriminatory racial quota law: Jay Greene v. Attorney General Tim Griffin, et al. Despite recent legislative changes, Arkansas law reserves a seat on Arkansas’ Ethics Commission for members of minority races only, prohibiting people like Jay Greene from serving.
Attorney General Tim Griffin was due to appoint a new member to the Commission, but the existing law restricted Griffin from acting. “I took an oath to uphold both the Arkansas and United States Constitutions, which promise equality under the law, regardless of race,” Griffin said in a statement released this summer.
“Because the Arkansas statute mandates unconstitutional racial discrimination, I am unable to comply with it while upholding that oath. Therefore, I must decline to make this appointment to the Ethics Commission.”
Ethics Commission Candidate
Jay Greene is a retired Distinguished Professor from the University of Arkansas and a preeminent scholar in school choice. After graduating from Harvard with his PhD in political science, Greene dedicated his career to studying the importance of education, equality, and opportunity.
For Greene, education involves shaping the whole person, so that they are equipped with the requisite character and virtue to live flourishing lives. Paramount to this formation is ethics. Colleges and universities should do more than equip students with skills, Greene wrote. They should be forming students who are virtuous, tolerant, and ethical, which are qualities necessary for public service as well.
Greene’s study of cultural immersion and the arts led him to believe that students should seek to understand the unique value of the human person without judging them based on their immutable characteristics. For Greene, this is why education matters—and his values impact all his work, including his desire to serve on Arkansas’s Ethics Commission.
The Fourteenth Amendment’s Equal Protection and Citizenship Clauses protect the right of all Americans to enjoy equality before the law. No person should be disqualified from serving in public office based on immutable characteristics such as race or sex; yet that is what happened to Jay Greene.
Sadly, states across the country still have discriminatory mandates preventing qualified individuals from serving on public boards, including in the state of Arkansas.
Arkansas History of Discriminatory Laws
Three years ago, Pacific Legal Foundation filed its first lawsuit against the State of Arkansas for its discriminatory practices: Stephen Haile v. Arkansas Gov. Asa Hutchinson.
In 2022, three seats opened on Arkansas’ Social Work Licensing Board, but Stephen Haile was excluded from serving based on his race. Following the lawsuit, Arkansas’ legislature passed a bill protecting equal opportunity for people wanting to serve on the Social Work Licensing Board.
Thankfully, Arkansas amended its law and allowed all Arkansans the opportunity to serve on a state board based on merit, not race, but this law should not have been on the books to begin with.
PLF filed yet another lawsuit against Arkansas in Do No Harm, Foundation Against Intolerance and Racism v. Governor Sanders earlier this year. Shortly after the suit was filed, Gov. Sanders signed House Bill 1365, repealing race-based quotas on several public boards such as the Occupational Therapy Examining Committee and the Board of Examiners in Counseling.
Jay Greene’s case is continuing the momentum of removing discriminatory laws in Arkansas. Yet, there is one unique aspect to Greene’s case: Arkansas ironically has a racial quota for the Ethics Commission, which is intended to ensure compliance with Arkansas law. Rather than looking for a skilled candidate, Arkansas’ racial quota law requires that the vacant spot is filled based on racial status.
In addition to an Equal Protection claim, Greene is bringing a claim under the Citizenship Clause of the Fourteenth Amendment, asserting that his status as a citizen affords him equal footing to pursue opportunities like serving on public boards .
The State of Arkansas must provide a compelling state interest if it wants to prohibit citizens from serving on public boards based on race. Based on prior precedent, it is highly unlikely that the State’s arguments will prevail under strict scrutiny.
PLF’s Nationwide Efforts
Back in 2023, PLF’s strategic research team published a brief—Public Service Denied: How Discriminatory Mandates Prevent Qualified Individuals from Serving on Public Boards—analyzing several prior cases that PLF has litigated, including Stephen Haile from Arkansas.
PLF researchers discovered “63 boards in 14 states (some of which also have statewide laws) with race- or sex-conscious mandates for membership.”
“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.” PLF attorney Laura D’Agostino, said.
Pacific Legal Foundation has dedicated its efforts to ensuring equal protection under the law for all Americans. Considering PLF’s success in the described cases, there is a strong possibility that Arkansas will amend its racial quota law for the Ethics Commission based on Jay Greene’s recent lawsuit.
