Phoenix prefers 'diversity' to life-saving ability when it comes to lifeguards

Phoenix prefers 'diversity' to life-saving ability when it comes to lifeguards

Strong Swimmer in Butterfly StrokeThe City of Phoenix thinks swimming ability isn’t that important for a lifeguard, and that “diversity” matters more than the ability to save lives. It says it’s “not looking for strong swimmers” when it comes to minority applicants.

As George Mason University law professor David Bernstein notes, discussing a recent NPR story about this:

You can’t make this stuff up. The city of Phoenix, concerned that “too many” of its lifeguards are white and that kids in non-white neighborhood pools can’t relate, is recruiting black and Hispanic kids who are not strong swimmers. A [recruited] student featured in the article tells the NPR reporter, “Honestly, I have a little bit a fear of the water,” . . . It would be one thing if the city was promising to get only hire kids who could be trained to be strong swimmers by the Summer. Instead, pool staff will work with underqualified kids on their swimming schools “all Summer.” And what if someone is drowning on Memorial Day? NPR seems to want to put a happy-face “City of Phoenix reaching out to minority kids for lifeguard jobs” spin on this story, but as a Facebook friend put it, “If I wrote a job ad, ‘Looking for weak swimmers to be life guards for minorities,’ you would think it was some sort of racist joke.”

Racial preferences are generally forbidden by the Constitution and Title VII of the Civil Rights Act, but the Supreme Court has occasionally countenanced exceptions allowing the use of race, such as to promote “diversity” in college admissions (in its 2003 Grutter decision), or affirmative action by private employers to eliminate “manifest racial imbalances” (in its 1979 Weber decision).

But what Phoenix is doing is unconstitutional, and is motivated at least partly by a legally-forbidden customer-preference rationale (the idea that patrons of neighborhood pools want a lifeguard who looks like them and can’t “relate” to lifeguards of a different race, like whites), rather than any legally legitimate remedial affirmative action rationale. That’s putting aside the fact that it’s just plain foolish and unsafe for patrons of city pools.

Currently, the Supreme Court is weighing the constitutionality of racial preferences in college admissions (in the Fisher v. Texas case) and a challenge to a Michigan state constitutional amendment banning racial preferences in college admissions, government contracts, and public employment (in the Schuette v. Coalition to Defend Affirmative Action case).

Discriminating against job applicants based on customers’ supposed preference for members of one group (as Phoenix is doing) is generally forbidden even in the context of gender discrimination, which is less forbidden than racial discrimination, and which (unlike racial discrimination) is occasionally permissible as a bona fide occupational qualification. See Diaz v. Pan American World Airways, 442 F2d 385 (5th Cir 1971). This invalid rationale for minority preferences renders them unconstitutional even if the preferences could theoretically have been justified based on another rationale (which does not appear to be the case here, in any event). A City must show that a legitimate rationale for using race was its “actual purpose” for using race, and cannot rely on a purpose that “did not actually precipitate the use of race.” (See Shaw v. Hunt, 517 U.S. 899, 908 n.4, 910 (1996)).

Hans Bader

Hans Bader

Hans Bader practices law in Washington, D.C. After studying economics and history at the University of Virginia and law at Harvard, he practiced civil-rights, international-trade, and constitutional law. He also once worked in the Education Department. Hans writes for and has appeared on C-SPAN’s “Washington Journal.” Contact him at


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