Center for Equal Opportunity

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Fri10202017

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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.