Former White House Counsel C. Boyden Gray sent two letters to New York on Tuesday on behalf of the Project on Fair Representation and the Alliance for Fair Board Recruitment, denouncing racially discriminatory policies.

The first letter, on behalf of the the Project on Fair Representation to New York Department of Health Acting Commissioner Mary T. Basset, warned the Department about serious legal problems in the Department’s new racially discriminatory guidance on the prioritization of COVID-19 treatments. The letter notes that, according to the Department’s December 29th guidance, “Non-white race or Hispanic/Latino ethnicity should be considered a risk factor, as longstanding systemic health and social inequities have contributed to an increased risk of severe illness and death from COVID-19.”

Michael Buschbacher, an attorney at Boyden Gray & Associates said, “New York’s racially discriminatory treatment plan reads like something from the pages of a 1920s racialist newsletter claiming that ‘whites’ are somehow inherently more resistant to disease than members of other races. This pseudo-scientific claptrap is wrong and immoral. The shortage of COVID-19 therapeutics is bad enough—New Yorkers of all races deserve better than having these lifesaving treatments rationed based on the color of their skin.”

The second letter, on behalf of the Alliance for Fair Board Recruitment to Acting New York Department of Financial Services (DFS) Superintendent Adrienne A. Harris, warns DFS about serious legal and factual issues that plague its proposed racially discriminatory disclosure program for banks and other financial institutions. The policy would require regulated institutions to report the gender, racial, and ethnic makeup of their boards and management with the intent of pressuring these institutions to make “progress” towards diversity “goals,” ostensibly to improve firm performance. But, as the warning letter notes, the “evidence” relied upon is nearly all junk social science that does not even include basic findings like statistical significance. And the one study that did claim to have discovered a statistically significant link between racial diversity and firm performance is a report by the consulting firm McKinsey that explicitly disclaimed that there was any causal link between diversity and performance.

Jonathan Berry, a partner at Boyden Gray & Associates who also represents the Alliance in federal legal challenges to California and Nasdaq’s race and sex based board quotas, said, “the Department of Financial Services’ justifications for coercing increased board diversity are deeply flawed and do not support its mission of protecting the financial industry or its customers. Its reduction of diversity to race and sex is wrongheaded and illegal.”

The Project on Fair Representation is a not-for-profit legal defense fund program that is designed to support litigation that challenges racial and ethnic classifications and preferences in state and federal courts.

The Alliance for Fair Board Recruitment is a non-profit membership corporation whose mission is to promote the recruitment of corporate board members without regard to race, ethnicity, sex and sexual identity.

Boyden Gray & Associates is a boutique litigation and public policy firm, continuing C. Boyden Gray’s decades of service as counselor to presidents, business leaders, legislators, and regulators on matters of constitutional law, regulatory policy, and international affairs.