LLNL Director William H. Goldstein
By Anthony P. X. Bothwell, Esq.
Former LLNL Public Affairs Director
San Francisco, Calif.
Dear Dr. Goldstein:
I join your many well-wishers as you approach retirement following 36 years at Lawrence Livermore National Laboratory including six years as Laboratory Director. Your advice and counsel undoubtedly will be of great value to your successors. Although the coronavirus pandemic limits everyone’s activities for a time, I trust you will stay safe, be of good health and enjoy family and friends.
Your announcement on July 9 indicated that you plan to stay on the job until your successor is chosen. Your retirement coincidentally occurs while the nation is in the process of the greatest reckoning with the consequences of slavery since the 1960s and perhaps even since the 1860s. As you prepare for new opportunities in your own life, the lab now has an opportunity to make a difference in the nation’s quest for the equality of all that was envisioned by Jefferson in the Declaration and proclaimed by Lincoln at Gettysburg.
On July 27, 2020, I sent you a copy of an open letter to the LLNL community suggesting that a diverse selection committee should name an African American to serve as the lab’s next director. I noted achievements of distinguished African American leaders in science such as Dr. Walter E. Massey, former director of the Argonne National Laboratory, and Dr. Neil deGrasse Tyson, current director of Hayden Planetarium.
Conventional wisdom holds that it is not possible to do that which has not been done before. The lab, however, often has refuted that proposition in the field of science and can refute it in the field of organizational leadership.
The legal justification for appointing an African American director at this time is as compelling as the moral imperative for doing so.
The lab’s Nondiscrimination and Affirmative Action Policy Statement says, “LLNL is an affirmative action/ equal opportunity employer. LLNL undertakes affirmative action, consistent with its obligations as a Federal contractor, to increase employment opportunities for minorities….” Federal contractors are required to “develop and maintain a written affirmative action program.” 41 C.F.R. 60-2.1. An affirmative action program requires action. The point of affirmative action is to act affirmatively, to take proactive steps to remedy past discrimination. “In traditionally segregated job categories,” the U.S. Supreme Court has held, this requires “determining whether an imbalance exists that would justify taking…race into account.” Johnson v. Transportation Agency, Santa Clara County, 480 U.S. 616, 631 (1987) (internal quotation marks and citation omitted).
The job of Laboratory Director is a traditionally segregated category, inasmuch as the number of Black directors since the lab was founded in 1952 is zero, a manifest imbalance. Referencing Title VII of the Civil Rights Act of 1964, the Supreme Court explained: “Where a job requires special training…the comparison should be with those in the labor force who possess the relevant qualifications. .…The requirement that the manifest imbalance relate to a traditionally segregated job category provides assurance that…race will be taken into account in a manner consistent with Title VII’s purpose of eliminating the effects of employment discrimination, and that the interests of those not benefiting from the plan will not be unduly infringed. .… A manifest imbalance need not be such that it could support a prima facie case against the employer. …. Title VII is intended as a catalyst for employer efforts to eliminate vestiges of discrimination.” Johnson at 632-633 (internal quotation marks and citation omitted).
California’s prohibition of Affirmative Action by state entities (1996 Proposition 209) is superseded by the Federal mandate of affirmative action of federal contractors. Even if it were not superseded by the mandate for contractors, Prop 209 applies to State of California itself as an employer and not to the limited liability corporation that manages the lab. Prop 209 also does not apply because the federally owned lab operates, concordant with “state actor” doctrine, in the place of the Federal government itself. Even if Prop 209 applied to the lab, it will not matter in the final analysis because Prop 209 not only violates a U.S. treaty, the International Convention on the Elimination of All Forms of Racial Discrimination, but also is likely soon to be decisively rescinded by the voters (ACA 5, November 3, 2020).
As I often reminded people when I was public affairs director, LLNL is the nation’s principal multidisciplinary scientific research and development laboratory. As a citizen I have suggested the idea of appointing an African American as your successor. This suggestion has generated positive feedback from people who care about the lab’s mission and the nation’s progress.
I would be grateful for the courtesy of a response from you or your representative.
With respect and best wishes…