As Lawrence Livermore National Laboratory searches for a new director, attorney Tony Bothwell says there’s compelling legal justification to appoint an African American to the job.

In a letter dated Aug. 29, to Dr. Bill Goldstein, the retiring lab director, Bothwell says federal regulations and Supreme Court rulings require a government contractor like the lab to have an affirmative action program, in which the point is ‘to take proactive steps to remedy past discrimination.’

The letter adds, “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.” 

Bothwell says California’s prohibition of Affirmative Action by the state (1996 Proposition 209) is superseded by the federal mandate of affirmative action on the part of federal contractors. The University of California is part of the joint venture that manages the government lab.

“Even if it were not superseded by the mandate for federal contractors, Prop 209 applies to (the) State of California itself as an employer and not to the limited liability corporation that manages the lab,” Bothwell wrote.

Prop 209 also does not apply because Lawrence Livermore National Security, LLC, runs the lab "concordant with ‘state actor’ doctrine, in the place of the federal government itself.”

The former lab official adds, “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Convention on the Elimination of All Forms of Racial Discrimination, but also is likely soon to be decisively rescinded by the voters (ACA 5, Nov. 3, 2020).”