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Published online by Cambridge University Press: 27 August 2024
For five decades now the various levels of government in the United States, through the use of affirmative action and diversity policies, have sought a more racially and gender-wise equitable society with respect to equal employment opportunity. Governments established hiring goals for women and racial minorities. Goals became quotas as state and local governments (and private employers) that were dependent on federal money made certain that goals produced desired results by preferring people based on their race or gender. This article is a case study of how the Commonwealth’s welfare cabinet over two decades ago used long-standing civil service regulations and policies to pursue preferential employment practices while conterminously pursuing greater societal equity by reducing governmental oversight of welfare programs. All this foreshadowed President Biden’s iteration of affirmative action—federal equity directives regarding employment preferences and greater conditions of equality. After the events described herein, Democratic Kentucky transformed itself into a Republican state.
1 At the time of the events described in the article the author worked for Kentucky’s Cabinet for Families and Children. Consequently, he received and saved all emails and documents/reports referenced in the end notes and has personal possession of all sources referenced in end notes. A. Saenz, “Biden Criticizes ‘White Man’s Culture’ as He Talks Violence against Women,” CNN, March 27, 2019, https://www.cnn.com/2019/03/27/politics/joe-biden-white-mans-culture/index.html; Mike Gonzalez, “Biden’s Embrace of ‘Equity’ Means He’s Abandoned the Quest for Equality,” https://www.heritage.org/progressivism/commentqry/bidens-embrac.
2 Hood, J., “The Nixon Administration and the Revised Philadelphia Plan for Affirmative Action: A Study in Expanding Presidential Power and Divided Government,” Presidential Studies Quarterly 23, no. 1 (winter 1993): 145–67, 166Google Scholar.
3 Edsall, T. and Edsall, M., Chain Reaction: The Impact of Race, Rights, and Taxes on American Politics (New York: W. W. Norton, 1991), 4Google Scholar.
4 Stephen Sawchuk, “What is Critical Race Theory, and Why Is It under Attack?” Education Week, May 18, 2021, https://www.edweek.org/leadership/what-is-critical-race-theory-and-why-is-itunder-attack/2021/05.
5 Steelworkers v. Weber, 443 U.S. 193 (1979); Leiter, W. and Leiter, S., Affirmative Action in Antidiscrimination Law and Policy (2nd ed., New York: State University of New York Press, 2011), 44–46 Google Scholar.
6 Leiter, 46.
7 Robertson, David and Johnson, Ronald, “Reverse Discrimination: Did Weber Decide the Issue?” Labor Law Review 31, no. 11 (November 1980): 693–99Google Scholar.
8 Leiter, 43.
9 Leiter, 62.
10 Leiter, 71; United States Commission on Civil Rights, Federal Procurement after Adarand (Transmittal letter, 2005), https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&ved=2ahUKEwjk0vHZ8_OEAxU_AzQIHbS2ACwQFnoECBcQAQ&url=https%3A%2F%2Fwww.usccr.gov%2Ffiles%2Fpubs%2Fdocs%2F080505_fedprocadarand.pdf&usg=AOvVaw0emluQ9JUMqiBArUj_9Okd&opi=89978449.
11 Leiter, 51, 64, 68.
12 Civil Rights Act of 1964, Title VII, Section 703(a)(1)(2) and Section 703(j), as cited by Leiter, 30.
13 J. Gerth, “Wendell Ford was Kentucky,” Courier-Journal (Louisville), January 23, 2015, http://www.courieer-journal.com/story/news.2015.01/23/ket-documentary-wendell-ford/22225753.
14 J. Hood, “The American Cultural War and the Restructuring of Kentucky Politics,” Sageopen 9, no. 3 (July–September 2019), https://doi.org/10.1177/458244010871054.
15 Personal interview with Robert Overberg, July 28, 2003. Also, it was later alleged before a grand jury that before the election of a new governor someone working for the cabinet had illegally taken a listing of all the state’s welfare recipients’ addresses and telephone numbers and provided same to the Democratic Party. The party supposedly had used the information to call residents of west Louisville (“Black Louisville”) to warn them that if the Republican candidate won, he would get rid of all their welfare benefits. Lexington Herald-Leader, December 23, 1997 and March 4, 1998.
16 Viola Miller and John Morse, memorandum to Commissioners and Executive Directors, January 31, 1996; John Combs, memorandum to Viola Miller, 22, 1996.
17 Cabinet for Human Resources, Utilization Analysis for Human Resources, January 1, 1996–June 30, 1996.
18 Cabinet for Families and Children, Report on Hires, January 1, 1997–June 30,1997.
19 Teresa Suter and Marcia Morgan, memorandum to Commissioners and Office Heads, February 6, 1997.
20 Cabinet for Families and Children, Gender/Minority Employment data; Robert Overberg, personal interview, July 28, 2003.
21 Kentucky Personnel Cabinet, Governor’s Minority Management Trainee Program; N. Jackson, email to Cabinet Secretaries re: Certified Public Managers Program, April 4, 2008.
22 Office of the Attorney General, Travel Reimbursement Review of the Cabinet for Families and Children.
23 Kentucky Personnel Board Appeal, 99–581.
24 KRS18A.0751(4)(f); Mark A. Rosen, Director of Personnel, memorandum to all Office Heads, October 26, 1998; Commonwealth of Kentucky, Franklin Circuit Court, Civil Action, No. 90-CI-01320.
25 Cabinet for Human Resources, Ethnic & Gender Personnel Report January 1, 1996 through June 30, 1996; Cabinet for Families and Children, Ethnic & Gender Personnel Report July1, 1998 through December 31, 1998; Cabinet for Health, Ethnic & Gender Personnel Report July 1, 1998–December 31, 1998.
26 101KAR2:076; Cabinet for Human Resources Personnel Manual, Section on Detail to Special Duty; Cabinet for Families and Children, DSI Employees on Detail to Special Duty.
27 Cabinet for Human Resources, Personnel Procedures Manual, Section on Temporary Assignments; Office of the Attorney General, Travel Reimbursement Review of CFC.
28 101KAR2:034 Section 3(1); 101KAR2:066 Section 2(1)(a).
29 Cabinet for Families and Children, Affirmative Action Program for the Cabinet for Families and Children, revised November 1999 (DRAFT).
30 Wood, Peter, Diversity: The Invention of a Concept (San Francisco: Encounter Books, 2003), 43, 123Google Scholar.
31 Affirmative Action Program for the Cabinet for Families and Children, revised November 1999 (DRAFT).
32 Cabinet for Families and Children, Grievance, December 3, 1997; Teresa Suter, email to Stephen Jones, July 19, 2000.
33 Deputy Secretary Tim Jackson, “CFC’s Number 1 Reason for a Diverse Work Force: It’s the Right Thing to Do!” CFC Online 1, no. 7 (December, 2000).
34 Cabinet for Human Resources, Ethnic & Gender Personnel Report January 1, 1996 through June 30, 1996; Cabinet for Families and Children, Ethnic & Gender Personnel Report July1, 1998 through December 31, 1998; Cabinet for Health, Ethnic & Gender Personnel Report July 1, 1998–December 31, 1998.
35 Charlotte M. Harley, email to all state employees dated May 2, 2002; for a full discussion of this issue nationally, see Sommers, Christina Hoff, The War against Boys: How Misguided Feminism is Harming Our Young Boys (New York: Touchstone, 2000)Google Scholar.
36 Kentucky Commission on Women, A New Vision for Kentucky: Final Report of the Governor’s Task Force on the Economic Status of Women (n.p.: 2003).
37 Daniel Egbers to James L. Hood, August 21, 2001; Office of the Attorney General, Opinions 77-151, 84-278, 89-81, 98-ORD-45.
38 KRS344.015; Morgan Ransdell, Kentucky Commission on Human Rights Attorney to James Hood, December 21, 2001; Daniel Egbers to B. C. Brummett dated July 23, 1999; 29CFR1607.15A(2)(a) and (b); Attorney General’s Opinion 98-ORD-45 and 98-ORD-81; Cabinet for Families and Children, Disparate Impact Analysis: Report, 2000.
39 Kentucky Personnel Board appeal No. 99-581; Suter memorandum dated October 12, 2000, concerning Cabinet’s October 26, 1998, memorandum on appointments and promotions; an unpublished circuit court order cannot be cited as precedent.
40 Office of the Attorney General, Travel Reimbursement Review of CFC.
41 Mark Chellgren, “Agencies Ruled Liable in Whistle-Blower Cases,” Herald-Leader (Lexington), May 20, 2005, B4.
42 Herald-Leader (Lexington), August 24, 2002; AG 98-ORD-45; AG 98-ORD-81; Commonwealth of Kentucky Franklin Circuit Court Division 1, Case No. 98CI-00550; Personnel Board Appeal 99-581; Legislative Subcommittee on Families and Children Minutes, December 18, 2002.
43 Herald-Leader (Lexington), August 24, 2002; AG 98-ORD-45; AG 98-ORD-81; Commonwealth of Kentucky Franklin Circuit Court Division 1, Case No. 98CI-00550; Personnel Board Appeal 99-581.
44 Personal Responsibility and Work Opportunity Reconciliation Act (PROWRA) (P.L.106-193).
45 Cabinet for Families and Children, Department for Community Based Services, Operations Manual, Sections 1523, 1880, 1885, 5110, and 99589.
46 Robert Overberg, email to Esther Wilhoyte, February 15, 2002, subject: Duplicate MARS checks; Secretary Viola Miller, letters to State Senator Katie Stine, March 11, 2002, and September 23, 2002; Operations Manual, Section 1880; Robert R. Damron and Katie Stine to Edward B. Hatchett, October 23, 2002; Kentucky State Auditor’s Report to Subcommittee on Families and Children December 18, 2002; Teresa Suter deposition, April 19, 2004.
47 7CFR273; Operations Manual, Volume 1, Section 1660; Overberg interview; Cathy Mobley, email to Elaine Butler, November 6, 2001; Enhanced Food Stamp Funding for Kentucky, per FISCAL YEAR: USDA, Division of Family Support, Claims Review, February 25–March 2002.
48 Mobley memorandum to Jeanne Baldwin, August 27, 2001; Herald-Leader (Lexington), December 18, 2001; Enhanced Food Stamp Funding for Kentucky per Fiscal Year; United States Department of Agriculture, Division of Family Support, Claims Review, February 25–March 1, 2002.
49 Cabinet for Families and Children, Accounts Management Reports of Collections by Program for State Fiscal Years 2000 and 2001; United States Department of Agriculture, Division of Family Support, Claims Review, February 25–March 1, 2002; Legislative Subcommittee; Herald-Leader (Lexington), December 18, 2001.
50 Edward Hatchett to Katie Stine and Robert Damron, November 12, 2002.
51 Kentucky State Auditor’s Report to Subcommittee on Families and Children, December 18, 2002.
52 USDA, Claims; CFC Operations Manual, Section 1521; Dietra Paris to Gilbert Camacho, June 20, 2002.
53 Collen Flaherty, “White and Asian Professors Need Not Apply,” http://www.slate/articles/life/inside_higher-ed/2015/University_of_Louisville_job Ben Foster, “Affirmative Action and the University of Louisville: A Case Study,” https://www.org/articles/affirmative_action_at_the_university_of_Louisville_a_case_st.
54 Ibram X. Kendi Justifies His ‘The Only Remedy to Past Discrimination is Present Discrimination,’” https://news.grabien.com/story-ibram-kendi-justifes-his-only-remedy.
55 Horatius, “The End of the Long March,” The American Mind, August 4, 2021, https://amerianmind.org/salvo/the-end-of-the-long-march-; Joel Kotkin, “Critical Race Theory Ignores Anti-Semitism,” Unherd, August 10, 2021, https://unherd.com/2021/08/critcal-race-theory-rewrites-history/; Masoma Haq, “Over 5,000 Sign Pledge to Continue Teaching Critical Race Theory Even If Outlawed,” The Epoch Times, July 14, 2021, https://www.theepochtimes.com/mkt_morningbrief/over-5000-teache; Steve Miller, “Colleges Learning Costly Woke Math in the Courtroom School of Hard Knocks,” RealClearInvestigations, October 7, 2021, https://www.realclearinvestigations.com/articfles/2021/10/07/coleges-; Executive Order on Advancing Racial Equity and Support for Underserved Communities through the Federal Government, January 20, 2021.
56 Executive Order on Advancing Racial Equity and Support for Underserved Communities through the Federal Government, January 20, 2021; Rebecca Reynolds, “Court Rules against Using Race, Sex to Allocate Federal Aid, https://apnews.com/article/tn-state-wire-and-ethnicity-racial-unj; United States Department of Agriculture, Minority and Women Farmers and Ranchers, https://www.fsa.usda.gov/programs-and-services/farm-loanprogram.