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Art for Color’s Sake

New York City mayor Bill de Blasio wants to coerce museums and arts groups that receive city money into using hiring quotas based on race and ethnicity, according to the New York Times. But it would be illegal for employers to give in to this pressure, because Title VII of the 1964 Civil Rights Act forbids such discrimination.

Federal statute aside, it is unconstitutional for the city to engage in such pressuring. Any use of racial and ethnic classifications is “presumptively invalid” and triggers “strict scrutiny,” which can be met only if, for starters, there is a “compelling” government interest. The courts have recognized no such interest in the context here.

And no such interest is cited in the news story, just a claim by an official that hiring by skin color and national origin will lead to a “cultural sector” that “is fairer, more equitable and looks like the city it serves.” That, Justice Powell wrote many years ago, is just “discrimination for its own sake. This the Constitution forbids.”

The Presidential Advisory Commission on Election Integrity – The Left has been asserting for some time that there is no such thing as voter fraud: Not just that it is not widespread, or that there is only some of it, but that as a practical matter there is none of it at all.

There are a couple of reasons that the Left needs to take this dubious and extreme position.

First, it is essential to its credibility in opposing ballot-integrity measures like voter ID. As long as there is (or even could be) at least some voter fraud, it is hard to see why measures taken to stop it are a bad idea.

Second, if voter fraud is accepted to be a myth, then any and all ballot-integrity measures can only be explained as racist, and this in turn makes it more plausible that we have to resurrect Section 5 of the Voting Rights Act, incapacitated by the Supreme Court’s 2013 decision in Shelby County v. Holder, to keep states from enacting these measures. And the resurrection of Section 5 (requiring federal “preclearance” of all state and local practices and procedures that affect voting) is important because it will enable the Left to block not only perfectly legitimate voting laws, but will also get it back in the game of requiring racial gerrymandering that is partisan driven and politically correct.

(By the way, I’m not saying that it is impossible for a state-enacted ballot-security measure to be racially motivated. But there are plenty of laws available to challenge them.)

So the Left has to discredit the new election-integrity commission from the get-go. It says it is afraid that the commission will somehow falsely declare that there is widespread voter fraud, but really it would be fatal to the Left’s agenda even if the commission just found that there was some voter fraud.

Conservatives, on the other hand, should be happy with the commission simply doing an honest job of documenting what the facts are. If it does so, it probably won’t find that, for example, fraudulent ballots cost Donald Trump the popular vote, but it would also be most unlikely to find that, as a practical matter, there is no voter fraud at all. And such a balanced conclusion would be not only perfectly reasonable — it would also shut up the Left.

So let the commission do its job.

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The Left’s Backward-Looking Racial Narrative – I have just finished reading part I of Jason Riley’s new book False Black Power?, and I want to recommend it right away as highly as I can (by the way, Mr. Riley recently joined the Center for Equal Opportunity’s board of directors).  I’ll write more when I finish part II, in which the always-interesting John McWhorter and Glenn Loury offer their critiques and Mr. Riley responds. 

It’s a short book (only 122 pages), and I’m savoring every paragraph.  The thesis, in brief:  “The major barrier to black progress today is not racial discrimination and hasn’t been for decades.  The challenge for blacks is to better position themselves to take advantage of existing opportunities, and that involves addressing the antisocial, self-defeating behaviors and habits and attitudes endemic to the black underclass.”

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One More Thing – R.R. Reno in the current issue of First Things quotes William Deresiewicz (who is not a conservative, by the way): 

“Unlike the campus protestors of the 1960s, today’s student activists are not expressing countercultural views.  They are expressing the exact views of the culture in which they find themselves (a reason that administrators prove so ready to accede to their demands).  If you want to find the counterculture on today’s elite college campuses, you need to look for the conservative students.” 

Now, I’m not sure there wasn’t a lot of truth in this even in the sixties, but my point is that it is certainly true now.

Uber Takes Eric Holder’s Bad Advice

Uber hired former attorney general Eric Holder to give it some advice about its scandal-ridden workplace. Predictably, much of that advice turned out to be more politically correct than legally sound, much like the Justice Department when he was running it. Alas, the Uber board has already announced that it will adopt Mr. Holder’s recommendations.

In particular, Mr. Holder wants Uber to get its numbers right, by hiring more “underrepresented” minorities and women. And so: “The Head of Diversity (or Chief Diversity and Inclusion Officer) should set goals with respect to annual improvements in diversity and regularly publish data on Uber’s diversity and inclusion numbers to judge how the company is meeting its goals.”

Mr. Holder recommends that Uber adopt some version of the Rooney Rule, which is illegal, since it requires the sorting of job applicants by race, ethnicity, and sex. Perversely, he also recommends that Uber have “blind resume review” — that is, resumes that have had all indicators of race, ethnicity, and sex removed from them — which is a fine idea but flatly inconsistent not only with the Rooney Rule but with the rest of his recommendations. Those recommendations, for example, urge setting and meeting diversity goals and then rewarding and punishing (“recognizing” and “holding accountable,” meaning getting bonuses and getting fired, see recommendation II.D) managers based on “metrics that are tied to improving diversity.” In a word, quotas.

“Candidates who are themselves diverse” is one quality the board should look for in the new chief operating officer. And there’s plenty in the recommendations on “unconscious bias” but nothing on the quite conscious bias that would be required by them. Tellingly, Mr. Holder criticizes the company’s embrace of “Meritocracy and Toe-Stepping” as a corporate value.

There is a simple choice to be made here, folks, whether we’re talking about jobs or university admissions or government contracts or whatever. We can strive for nondiscrimination, which is what fairness and the law require, or we can mandate “diversity,” which inevitably means politically correct discrimination, which is in turn neither fair nor legal. We can’t have both. Nondiscrimination will lead to more diversity if the status quo was politically incorrect discrimination, but it is nondiscrimination that must be the aim, not a predetermined bean-count.

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In my discussion above, I noted that the so-called “Rooney Rule” is illegal.  Here’s what I wrote earlier (2009) on that topic:

The Rooney Rule Is Illegal (And So Is Expanding It) – The National Football League is considering the expansion of the “Rooney Rule” to the hiring of general managers. The rule, now limited to head coaches, requires at least one minority to be interviewed by a team filling a vacancy.

But this is clearly illegal. Title VII of the 1964 Civil Rights Act prohibits racial discrimination in private employment, and that’s what this is. The statute covers hiring, of course, and also makes it illegal for an employer to “classify his . . . applicants for employment” in a way that denies equal treatment on the basis of race.

It might be objected that there’s no harm here, since it’s only requiring an additional interview. But suppose the shoe were on the other foot, and the requirement was that at least one white candidate always be interviewed. Would that fly?

And there will be harm. Suppose that a team normally narrows the field to four candidates and then interviews them. If it keeps this rule, then if you’re white candidate number four, you’re out of luck, because now you have to make way for the minority interviewee. Suppose the team decides to interview a fifth candidate instead. Well, the minority coach who was the tenth choice now leapfrogs over white candidates six, seven, eight, and nine — all out of luck because they are the wrong color. And, of course, if the minority candidate is hired, then one of the white finalists — the one who would have gotten the job otherwise — is out of luck, too.

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And as long as I’m quoting myself:  Sometimes I get criticism on the right when I take private companies to task for violating antidiscrimination laws.  I’m told that private companies should be allowed to engage in such discrimination if they like.  Of course, one answer is that just because something is, or ought to be, legal doesn’t make it right.  But on the legal policy point, here’s something I wrote years ago: 

Richard Epstein[a libertarian law professor]  concludes his review of The Shape of the River, a long defense of racial preferences in college admissions by William Bowen and Derek Bok, by advocating "decentralized decision making" …. That way, each school could decide on its own whether to discriminate on the basis of race and ethnicity in selecting its students.

Professor Epstein cheerfully acknowledges that this approach runs afoul of current law, and he calls for that law’s repeal. But while we are waiting for Congress to revoke the Civil Rights Act of 1964 — and I hope Professor Epstein isn’t holding his breath, as I would hate to lose him — the issue we face in the real world is this: Should colleges and universities be barred from discriminating against whites and Asians, just as they are now barred from discriminating against blacks and Hispanics?

One can defend the decentralized scheme that Professor Epstein advocates. One can also defend the law that was actually written and passed in 1964, prohibiting colleges that receive federal money from discriminating against anyone because of race or ethnicity. What is indefensible, however, is the law as it is currently interpreted by the federal bureaucracy and defended by Messrs. Bowen and Bok: a ban on discrimination against some people (blacks and Hispanics) but not others (whites and Asians).

Professor Epstein was discussing Title VI of the 1964 Civil Rights Act, which prohibits discrimination by recipients of federal funding, and Uber is covered by Title VII of the same Act, which prohibits discrimination by private employers.  But my point is the same:  As long as the law protects members of some racial groups from racial discrimination, there really is no justification for saying that it shouldn’t protect all racial groups from racial discrimination.

Starbucks Announces New Effort to Break the Law

Starbucks Chief Executive Howard Schultz

According to the Wall Street Journal, “Starbucks Corp. is teaming up with more than a dozen companies in a commitment to increase hiring of young, minority workers over the next three years.”  It’s unclear from the article exactly how race and ethnicity are to be used in the hiring process.  The definition of “minority” is also not spelled out, though as is often the case some minorities seem to be more equal than others (blacks and Latinos are mentioned, but no one else).  

Nor is it clear what the justification is for this nonsense. Starbucks Chief Executive Howard Schultz (of “Race Together” fame) says, “It’s very personal for me, having grown up in public housing and understanding what it was like to be that poor kid,” but Mr. Schultz does not appear to be black or Latino, and it may come as news to him, too, that there are many blacks and Latinos who have not grown up in public housing and are not poor. 

But logic and fairness aside, employment discrimination on the basis of race and ethnicity is illegal, with only a few narrow exceptions that do not apply here.  No doubt the Obama administration’s Equal Employment Opportunity Commission will quickly explain this to Starbucks and the other companies involved.

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Here’s some better news:   There may be some progress on the No Child Left Behind law.  Regarding the just-passed House version of this reauthorization bill, the Wall Street Journal reports:

Though they are divided on the Senate measure, teachers’ unions and civil rights groups oppose the House bill, arguing that it doesn’t invest in high-poverty districts and hold schools accountable for individual subgroups of students, such as minorities and those with disabilities. They’ve found an ally in the business community, which wants the federal government to be able to force states to take action if one of these subgroups is falling behind, said Cheryl Oldham, vice president of education policy at the U.S. Chamber of Commerce.

As I’ve discussed before, I’m all for taking race-based targeting out of this legislation.

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Sorry to have to end on an off-note, but the administrative complaint filed with the Obama administration’s Department of Education, and alleging that Harvard’s racial preferences in undergraduate admissions violate the law by discriminating against Asian Americans, has been dismissed.

I know that nobody likes an I-told-you-so, but here is the conclusion of what I wrote when the complaint was filed: “I suspect that the Obama administration will do exactly nothing with today’s administrative complaint, because a) it doesn’t want to since it likes politically correct discrimination and b) it can say that this matter is already before a federal court.”  And, alas, that’s just what happened.

Affirmative Discrimination for Firefighters?

There are, alas, no minorities or women in the Cranston fire department — the only Rhode Island city so stained.  But the city is aware of the ignominy and is aggressively trying to find suitable applicants — and indeed it admits to “loosening” its hiring requirements in order to solve this problem.

But just a second:  Is it really a good idea to be lowering standards for those in charge of saving other people’s lives? 

Councilman Michael J. Farina apparently thinks not.  “Maybe minorities don’t want to be firefighters,” he says. “I can’t see lowering our standards” to hire them, he added.

So forget Donald Trump and Hillary Clinton:  I nominate Michael J. Farina (who earlier this year switched parties, from Democrat to Republican, by the way) for president.

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Speaking of which:  Kudos to Professor Dawinder Sidhu for his fine article on “Racial Mirroring”— the notion that, say, fire departments should weigh race in their hiring in order to have a workforce that “looks like” the surrounding community — and how it “violates the Equal Protection Clause, perpetuates harmful racial stereotypes, and produces significant legal and social costs.”  He can be President Farina’s new attorney general, or first appointment to  the Supreme Court. 

I would add only that, as dubious as such race-based hiring is as a constitutional matter, it’s even harder to justify under the most relevant federal civil-rights statute, namely Title VII of the 1964 Civil Rights Act. I’ve discussed the problems with any nonremedial justification for racial preferences under Title VII here (part III, starting on p. 981). 

“New White House Policy Promotes Ethnic Separation — and Congress Should Reject It.”  That’s the title of an excellent new Heritage Foundation issue brief by Mike Gonzalez. It’s prompted by a new Obama administration policy statement, released recently, pressuring “states to support and encourage children to retain separate languages and cultural attachments” (quoting Mr. Gonzalez). 


The most important things that public schools can do are teach children to use English well and encourage a common and patriotic commitment to our country and its values. So naturally the Obama administration is trying to undermine both. 

Watch for the administration to pull out all the stops to advance a left-wing agenda during its last half-year.

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Finally, I’ve noted before that, among its many other activities, the Center for Equal Opportunity frequently weighs in when government agencies at any level — federal, state, or local — are contemplating the use of preferences based on race, ethnicity, or sex in their contracting decisions.  We urge them not to do so, naturally, and have recently targeted agencies in Illinois, North Carolina, Florida, Texas—and this month Missouri. 

To give you an idea of what this weighing-in looks like, here’s the formal comment that CEO and Pacific Legal Foundation sent to Missouri’s Commissioner of Administration:

Last month, the Missouri Register published a number of amendments to Title 1 that would expand race and sex-based considerations in public contracting in Missouri. … Pacific Legal Foundation and the Center for Equal Opportunity disagree with this rule, and offer the following perspective on why the new amendments are unconstitutional.

States are frequently urged to treat contractors and subcontractors differently based on the race, ethnicity, or sex of the companies’ owners. Missouri should not engage in such discrimination. For Missouri to use classifications and preferences based on race and sex would raise serious constitutional issues. As a result, using such classifications and preferences will invite costly litigation challenging the constitutionality of the program: litigation the state will almost certainly lose.

Using classifications and setting goals or requiring set-asides of particular racial percentages inevitably encourage discrimination as a means to meet them, and such classifications and goals must be analyzed under the rigorous strict scrutiny standard. See, e.g., Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995) (“all racial classifications . . . must be analyzed by a reviewing court under strict scrutiny”); see also Rothe Dev. Corp. v. United States Dep’t of Defense, 545 F.3d 1023, 1035 (Fed. Cir. 2008); Monterey Mechanical Co. v. Wilson, 125 F.3d 702, 712 (9th Cir. 1997). Strict scrutiny is triggered if the government makes special efforts to work with some companies, but not others, based on the race of the companies’ owners. See Monterey Mechanical Co., 125 F.3d at 704, 712 ….

Strict scrutiny requires that the government bear the burden to show that it has a “compelling interest” to use racial classifications, and the means chosen to achieve the compelling interest is narrowly tailored. Kohlbek v. City of Omaha, 447 F.3d 552, 555 (8th Cir. 2006). In the contracting context, the government does have a compelling interest in remedying past discrimination. See City of Richmond v. J.A. Croson, Co., 488 U.S. 469, 497 (1989). But this is only a compelling interest if the government identifies the discrimination it is trying to remedy. Id. at 507. And even if the government has a “compelling interest,” it must show that the means used to remedy the discrimination are “narrowly tailored” to achieve that purpose. To be narrowly tailored, racial classifications must not be “used any more broadly than the asserted compelling interest requires.” Kohlbek, 447 F.3d at 556.

Because this high constitutional burden applies if Missouri uses such racial or sex preferences, it is likely to be challenged in court and struck down as unconstitutional. That was the result in other contracting set-aside cases in New Jersey, Jackson, Mississippi and Atlanta, Georgia. Assoc. for Fairness in Business, Inc. v. New Jersey, 82 F. Supp. 2d 353 (D. N.J. 2000); W.H. Scott Construction Co. v. City of Jackson, 199 F.3d 206 (5th Cir. 1999); Webster v. Fulton County, 51 F. Supp. 2d 1354 (N.D. Ga. 1999). Not only have these programs been struck down, but the officials who adopted the unconstitutional policies have been held personally liable for doing so. See Hershell Gill Consulting Engineers, Inc. v. Miami-Dade County, 333 F. Supp. 2d 1305 (S.D. Fla. 2004); Alexander v. Estepp, 95 F.3d 312 (4th Cir. 1996) (no qualified immunity for county and fire department officials in case challenging affirmative action employment policy); Alexander v. City of Milwaukee, 474 F.3d 437 (7th Cir. 2007) (individual liability upheld for compensatory and punitive damages against various city commissioners where discrimination violated clearly established law).

Litigating discrimination and preference cases is expensive. In the event of a legal challenge, the state will have to pay its lawyers and expert witnesses. Moreover, in the likely event that it loses, Missouri may also be responsible for plaintiffs’ attorney fees and costs. See 42 U.S.C. § 1988(b)-(c). To avoid these problems, which will certainly arise if Missouri adopts a broader set-aside program, we urge that the state not adopt these amendments.

Thank you in advance for your consideration of our concerns. …

Comment on Dodd-Frank Proposed Interagency Policy Statement

Commissioners Todd Gaziano, Gail Heriot, Peter Kirsanow, and Abigail Thernstrom of the U.S. Commission on Civil Rights have submitted the attached incisive comment regarding an issue that has long been of interest to the Center for Equal Opportunity.  Here’s the background:  Last month, a number of Obama administration agencies with financial-sector regulatory responsibilities jointly published in the Federal Register a proposed “Policy Statement Establishing Joint Standards for Assessing the Diversity Policies and Practices of Entities Regulated by the Agencies.”  The statement comes as a result of Section 342 of the Dodd-Frank legislation, which requires these agencies each to “establish an Office of Minority and Women Inclusion” that, in turn, is to develop diversity and inclusion standards for workplaces and contracting.  CEO president Roger Clegg wrote a short summary of Section 342 here, and blogged about the recent policy statement here.

 

The proposed statement is even worse than the bill itself, since it aggressively applies not only to the agencies themselves but also to all those regulated by it, and repeatedly insists on the use of “metrics” and “percentage[s]“ (i.e., numerical quotas) to ensure compliance. And while the statute at least cautions that diversity efforts are to be undertaken “in a manner consistent with the applicable law” (like the Constitution and, presumably, federal civil-rights statutes that are colorblind in their protection against discrimination), there is no such nod in the proposed statement, nor is there any mention of stopping or preventing discrimination – the only possible justification for consideration of race, ethnicity, and sex in hiring, promotion, and contracting.  Comments on the proposed statement are due by Christmas Eve, and here’s hoping that the government receives more feedback like the Commissioners’ excellent letter.

Attachments:
Download this file (Comment re Proposed Interagency Policy Statement.pdf)Comment re Dodd-Frank Proposed Interagency Policy Statement[Comment re Dodd-Frank Proposed Interagency Policy Statement]62 Kb