- The Washington Times - Monday, April 4, 2022

It’s illegal to discriminate based on race, even in the name of increasing diversity, which is why the NFL’s newly announced mandate on women and minority coaches is already raising red flags.

The league announced last week at the annual owners meeting that all 32 teams must employ a woman or person of color as an offensive assistant coach, an effort to put diverse candidates in the pipeline for future head coaching positions.

Whether the hiring initiative can pass legal muster is another question, given that it looks at first glance like a “pretty clear racial and gender quota,” said Josh Blackman, South Texas College of Law Houston professor.

“This is not saying you have to interview a Black candidate, which under the Rooney Rule is there, it’s saying you have to hire them, and a person who doesn’t meet those racial characteristics is per se unqualified,” Mr. Blackman said.

The resolution also landed on the radar of Tom Fitton, president of the conservative legal foundation Judicial Watch, which won a summary judgment Friday against a 2020 California affirmative-action law mandating racial and LGBTQ diversity on corporate boards.

“The NFL can’t be hiring people based on race and sex,” Mr. Fitton said. “Are there ways around it? We don’t have the final details on whether that’s going to happen or not, but that’s what they’re saying they’re going to do.”

Indeed, there may be a way to finesse the fine print. So far, however, the league has offered few specifics beyond the language of the formal resolution approved March 28 at the annual meeting in Palm Beach, Florida.

The NFL did not respond to a request for comment.

“Beginning with the 2022 season, each club will hire a diverse person (female or a member of an ethnic or racial minority) as an ‘Offensive Assistant,’” said 2022 Offensive Assistant Resolution DC-1, as posted online by Dallas Morning News reporter Michael Gehlken. “This person is to have a minimum of three (3) years of collegiate or professional coaching experience.”

The assistant “shall have regular and direct contact with the Head Coach” and other offensive coaches, and carry out duties that include “contributing to the offensive game planning where appropriate, evaluating and identifying potential off-season additions, identifying drill work necessary for development, and coaching of players.”

The assistant would receive a one-year contract. The NFL plans to subsidize the position by reimbursing clubs for up to 50% of the assistant’s annual base salary to a maximum of $200,000 in 2022 and $205,000 in 2023.

Peter Kirsanow, a longtime member of the U.S. Commission on Civil Rights, said such racial set-asides are typically unlawful, but not always.

SEE ALSO: California judge strikes down law requiring racial, LGBTQ diversity on corporate boards

“The general rule is that any private, voluntary affirmative-action program that reserves spots or grants hiring preference to individuals on the basis of race is prima facie evidence of unlawful discrimination unless the program was implemented to redress a ‘manifest imbalance in a traditionally segregated workforce,’” Mr. Kirsanow, who served previously on the National Labor Relations Board, wrote in an email.

He said the “individual team must show that minority/female offensive coaches are underrepresented relative to the available numbers of qualified individuals and that such underrepresentation is due to past discrimination/segregation by the team.”

At the same time, he said, “Such past discrimination can’t be stale — that is, it can’t be from decades ago.”

Whether the NFL represents a “traditionally segregated workforce” would be an issue for the courts to decide if the policy were challenged by, say, someone rejected for the job based on race or sex.

“Let’s say you’re a White male and a team is looking to fill an offensive position, and you apply for this. And there’s only one slot,” said Mr. Blackman. “You’re not going to get it, right? So I think the litigation, if it were to be brought, would be brought by a White male.”

Finding a plaintiff could be difficult, he said, given that such a lawsuit would be the “kiss of death” to a coach’s career. In that case, attorneys general in states with NFL teams could step in to investigate possible violations of anti-discrimination laws.

“Every state has an anti-discrimination law which says broadly that you can’t discriminate on the basis of race when you’re engaged in hiring and such,” Mr. Blackman said. “This seems to be a very clear prohibition against the hiring of White people.”

Rooney Rule ‘sham’

Since 2003, the NFL has encouraged teams to hire minority coaches by requiring them to interview at least one candidate of color, known as the Rooney Rule.

In February, however, former Miami Dolphins head coach Brian Flores filed a bombshell lawsuit charging that his Rooney Rule interviews with clubs were a “sham,” delivering a blow to the league’s image and intensifying the pressure to add more coaches of color.

“I think the offensive assistants is a recognition of the fact that we don’t have the number of offensive coordinators that are people of color,” NFL Commissioner Roger Goodell said at a Wednesday press conference. “We think that’s where most of the head coaches, at least in recent years, have been a trend, on the offensive side of the ball, and this gives us an opportunity to develop some people in that area.”

One wrinkle: The new rule permits teams to count women or coaches of color currently in similar roles toward the mandate, NFL chief administrative officer Dasha Smith told ESPN.

All 32 NFL teams already have at least one assistant coach of color on the offensive side, although not all carry the title of “offensive assistant,” according to a review by The Washington Times of coaching rosters posted online.

For example, the Houston Texans list at least four: running backs coach Danny Barrett; offensive assistant Denarius McGhee; offensive-line coach George Warhop, and offensive assistant/quarterbacks Ted White.

In addition, the NFL has a recruitment program called the NFL Bill Walsh Diversity Coaching Fellowship, founded in 1987 to “increase the number of full-time NFL minority coaches.”

Despite its name, the fellowship does not say online that only minority applicants will be considered. The application also lists a box under “ethnicity” for “White (not Hispanic or Latino)” and “I Prefer Not to Respond,” which may provide the wiggle room needed to avoid legal jeopardy.

Numbers game

Whether Black people and women are underrepresented in the NFL coaching ranks depends on how you crunch the numbers.

The NFL currently has six head coaches of color, at least three of whom are Black: Pittsburgh’s Mike Tomlin, Houston’s Lovie Smith and Tampa Bay’s Todd Bowles.

Dolphins head coach Mike McDaniel’s father is Black.

Black people represented about 12.4% of the 2020 U.S. population but 58% of NFL players. About 25% of players are White; 9.8% are mixed race; 1.6% are Hawaiian or Pacific Islander, and 0.7% are Hispanic, according to Statista figures from the 2021 regular season.

Counting McDaniel, 12.5% of NFL coaches are Black, the same as their percentage of the U.S. population, but well below their percentage of the player population, which has been estimated at as high as 70% after factoring in those who identify as more than one race.

Advocates for more Black head coaches argue that the player figure is the relevant one. In that case, however, women are already overrepresented, given that there were 12 women on NFL coaching staffs in 2021 but no women on NFL player rosters.

Then again, women represent slightly over half of the U.S. population. There are no women who are head coaches in the NFL.

The resolution seeks to “build a diverse pipeline of NFL coaching talent on the offensive side,” but as Mr. Kirsanow pointed out, the law cares more about whether the rules were broken than the final score.

“’Good intentions’ or being in line with the zeitgeist are not defenses to employment discrimination,” he said.

• Valerie Richardson can be reached at vrichardson@washingtontimes.com.

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