Center for Equal Opportunity

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Enablers General and Other Thoughts on Ferguson

My handy online dictionary defines “enabler” as “a person who encourages or enables negative or self-destructive behavior in another.”  Another online definition:  “one who enables another to persist in self-destructive behavior … by providing excuses or by making it possible to avoid the consequences of such behavior.”

And that’s a fair description of the role the Left is playing, or would like to play, with respect to crime and substance abuse in many African American communities, isn’t it?  And this includes, alas, the Attorney General, as the Center for Equal Opportunity’s Linda Chavez discussed in her latest column.  

The Left’s preferred approach:  Let’s not focus overmuch on criminal and other self-destructive behavior, or talk about out-of-wedlock birthrates and a dysfunctional inner-city culture that romanticizes thugs and disparages “acting white.  Let’s talk instead about dubious arrest disparities and ill-defined “institutional racism.” 

Now, really, which discussion is more likely to improve the lives of those in these communities, law-breakers and law-abiders alike?

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From Eric Holder’s “open letter” to the people of Ferguson: “And police forces should reflect the diversity of the communities they serve.”

Hiring with an eye on race and ethnicity violates the civil-rights laws that Mr. Holder is supposedly enforcing. And such discrimination is not only unfair and divisive; it also means that the less qualified will be hired over the more qualified, which is in no one’s interest, including of course the general public’s interest in being protected.  

Should an all-white jurisdiction avoid hiring nonwhites? Do most nonwhites insist on having a sub-optimum police force because of their racial preferences? If they do, should those preferences be catered to? Can and should a police force be trusted only if it has a melanin content that approximates the melanin content of the jurisdiction’s general population? The answers are no, no, no, and no. And it is certainly not a good thing for the Attorney General of the United States to encourage, apparently, the answers of yes, yes, yes, and yes.

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But let’s assume the absolute worst and that it turns out that a policeman has acted with racial malice in killing a young black man. That may be one additional bit of evidence that the Left is justified in some part of its racial agenda, but one incident, no matter how dramatic, is not a universal proof. So it’s important that justice be done in this case, but it won’t tell us anything definitive about what goes on elsewhere. It’s not as if lots of people think that racism is nonexistent so that finding one example of it is really important. 

I can see the argument that an incident like this can be appropriately seized upon to force a particular reform in a particular community. But that’s about it. And, of course, you would want to wait until you actually knew what had happened.

And we know it may well turn out that what actually happened was somewhat different, or a lot different, from what the Left believes/hopes happened. In which case the Left’s worldview will not change, because that won’t be universal proof of anything either.

If the shoe were on the other foot, and a young black man was accused of some horrific crime, no one on the Left would concede that one young black man’s guilt made the case for this or that policy that the Left opposed. They would argue, rightly, that one incident can’t bear that much weight. And naturally we would hear a lot about being innocent until proved guilty.

I suppose it is human nature to like drama and, especially, to have a struggle come down to one decisive moment. But that’s not a sane way to view a broader reality or to make political decisions.

*          *          *

I can understand demonstrating against police racism.  But I’ve seen no evidence adduced of police racism in Ferguson beyond this shooting, where the facts are hazy at best and are still being investigated. 

And perhaps I’m being too charitable:  There are obviously some on the Left who believe they should just seize the moment to advance their agenda — although, even for them, it’s unclear to me just what that agenda is here — because it gives them an excuse to use a threat of unrest and even riots to extort this or that political payment (what would be more clearly seen as the blackmail it is if that excuse were lacking). 

Don’t waste a crisis; don’t even waste the opportunity to create a crisis where there really isn’t one.

And the media bear much of the blame here, too.  It sells too many newspapers and helps ratings too much not to help create a bigger story than this is, especially when doing so is consistent with the mainstream media’s liberal worldview anyhow.

*          *          *

One other item, this one not Ferguson-related: Here is a long — painfully, 876-words long — call for “Increasing College Diversity” on Huffington Post.  It’s quite unremarkable, the usual pabulum, and not at all worth reading. 

I send it only to note that at no point does the author argue that “diversity” will yield educational benefits for white and Asian students by exposing them to random conversations with students having a different melanin content from themselves.  Even that is not itself noteworthy, since most defenses of “diversity” likewise fail in this regard.  But it is worth noting that even those who defend the use of racial and ethnic preferences don’t seem to think much of the only legal defense the Supreme Court has recognized for such discrimination.

Fanning the Flames of Racial Tension

Words matter -- and never more so than when race is involved. For more than a week, we have been repeatedly told that a white police officer shot and killed an "unarmed black teenager" on a street in Ferguson, Missouri. The words conjure the image of a kid gunned down because of the color of his skin by a trigger-happy white cop.

And now we have the highest law enforcement official in the nation reinforcing this narrative. After visiting Ferguson this week to initiate a federal civil rights investigation into the shooting, Attorney General Eric Holder declared that he understands the distrust of police that many blacks feel.

"I understand that mistrust. I am the attorney general of the United States. But I am also a black man," he told an audience in Ferguson. Holder then met privately with the family of Mike Brown, the man shot, and later held a news conference in which he reiterated racial grievance: "This shooting incident has brought to the surface underlying tensions that have existed for many years. There is a history to these tensions, and that history simmers in more communities than just Ferguson."

Unfortunately, such words inflame racial mistrust -- and, even more importantly, undermine justice.

Let's start with the "unarmed black teenager" mantra.

Brown was 18 years old -- an adult by all legal standards. He was also 6 feet 4 inches tall and weighed nearly 300 pounds. Surveillance video from a nearby convenience store taken shortly before the shooting shows Brown as a towering muscled male stealing goods and then grabbing and violently shoving a store employee who tried to question him. The actual images of Brown on the video surely do not bring to mind a harmless teenager.

Unfortunately, we do not yet know exactly what happened minutes later when police officer Darren Wilson encountered Brown and a companion walking down the middle of a street. Brown's companion, Dorian Johnson, who had been with Brown during the earlier strong-arm robbery, told his version of what took place on St. Louis TV station KSDK on Aug. 13.

Wilson's arm, Johnson said, "extended out the window (and) grabbed my friend around the neck. (Wilson) didn't say 'step back' or anything like that. He started to pull my friend into the window. So the officer's trying to pull him in, and he's pulling away from the officer. He never once attempted to grab for this officer's weapon. He's still holding my friend with one arm. And now, with the other hand, he's pointing his weapon. The second time he says 'I'll shoot,' it wasn't even a second later before the gun just went off, and the officer let go, and that's how we were able to run at the same time."

But is Johnson's version of events plausible? Johnson's veracity is important, and he's told multiple, sometimes conflicting, versions of his story. Moreover, in 2011, Johnson pleaded guilty to a misdemeanor charge of filing a false police report and is currently still wanted on an outstanding warrant for failing to appear on theft charges in Jefferson City, Missouri.

But even without such questions about Johnson's trustworthiness as a witness, other questions about the account arise. Publicly available videos and still photos of Brown and Wilson show significant size differences between the two men, with Brown appearing to have a height advantage over Wilson and outweighing the officer by about 100 pounds. How is it even possible from a sitting position inside a car for a smaller man to reach out and grab someone much larger with one hand and pull him into the vehicle?

Accepting Johnson's version depends heavily on the image of that "unarmed black teenager" minding his own business when confronted by a white cop bent on venting racial animus.

Officer Wilson's version of events has yet to be publicly recounted. Nonetheless, bits and drabs have leaked out, including assertions that Brown blocked Wilson's ability to exit the police cruiser (a fact Johnson concedes but says was caused because Wilson pulled his car up too close to the two men). Sources claiming to be familiar with Wilson's account contend that Brown leaned into the police cruiser, punched Wilson in the face and struggled for control of Wilson's gun, which discharged. Multiple sources allege that Wilson was treated at a hospital for facial wounds, perhaps even a fracture to his eye socket.

A grand jury will hear all accounts of what happened. But Holder's rush to judgment by ordering a full-scale civil rights investigation before the grand jury even reaches its conclusion undermines the criminal justice system. Instead, it fans the very racial tensions Holder says he wants to calm.

Hamas' Propaganda Victory

The pictures are horrific: schoolroom walls covered in blood, parents running with injured children against a backdrop of bombed-out rubble, women with outstretched arms imploring Heaven. But they do not tell the full story of what is happening in Gaza any more than the casualty or rocket tallies printed daily in The New York Times and elsewhere do.

Midweek, the Times reported that 1,410 Palestinians have died and only 59 Israelis, while Israel had launched 3,577 rockets into Gaza compared to 2,753 fired by Hamas at Israel. But these figures are grotesquely dishonest, implying a moral equivalence that simply does not exist.

The escalating bloodshed could cease at any point. But Hamas chooses to keep the blood flowing, rivers of it meant to drown the resolve of Israel to dismantle the terrorist network that has impoverished Gaza and seeks to destroy the Jewish state.

Shedding innocent blood has always been the preferred tool of Hamas -- preferably the blood of Jews. But if it serves its propaganda purposes, Hamas is happy to sacrifice Muslim women and children by using them as human shields.

This point seems to be lost on UN Secretary-General Ban Ki-moon, who has blamed Israel for the deaths of 20 Palestinians at a UN school allegedly hit by Israeli rockets. Never mind that the UN has found weapons hidden in three of its own schools since the beginning of the conflict, and Israel Defense Forces have discovered weapons hidden in mosques and hospitals in Gaza, as well.

The technique seems to be working -- at least in rousing anti-Israel sentiment around the world, including among certain segments of the U.S. population. While more Americans believe Hamas is to blame for the bloodshed in Gaza, 40 percent to 19 percent, Democrats are nearly equally divided on the issue, with 29 percent blaming Hamas and 26 percent blaming Israel, according to a new Pew Research poll. Republicans, on the other hand, overwhelmingly say Hamas bears the burden of guilt for innocent lives lost, 60 to 13 percent.

Israel, which once enjoyed nearly universal respect and support in the West, has suddenly become the villain in all too many eyes. The shift in public opinion didn't begin with Operation Protective Edge, the Israel Defense Forces' move into Gaza earlier this month. As Joshua Muravchik outlines in his meticulously researched book "Making David into Goliath: How the World Turned Against Israel" (Encounter Books 2014), the tide began to turn decades ago, especially on the left.

Muravchik details the crumbling of support for Israel in Europe, which began early with French President Charles de Gaulle's infamous tirade against Jews as "an elite people, self-assured and domineering" after Israel's triumph in the 1967 Six-Day War. Anti-Semitic demonstrations and attacks in France, Germany and elsewhere in Europe have become commonplace today with the influx of Muslim immigrants to the continent. And the UN itself has become the favored forum for attacks on the legitimacy of Israel.

Muravchik's beautifully written book describes the confluence of events that helped undermine support for Israel, from the West's dependence on Arab oil to the left's adoption of a new paradigm that replaced class struggle with the conflict against "racism" that pitted "the rest against the West." Muravchik spends a whole chapter describing the ascendance of scholars in American universities whose worldview envisioned a perennial demographic conflict between young and old, male and female and, especially, white and non-white -- one in which Israel's very existence is seen as the triumph of "white people competing for land with people of color."

Muravchik details how these views have seeped in diluted form into the mainstream. He warns: "The anti-Israel camp does not need to win America fully to its side. Merely to neutralize it would radically alter the balance of power and put Israel in great jeopardy."

It is little wonder that Hamas relishes the pictures of dead and wounded Palestinians. Hamas is willing to sacrifice countless Palestinian lives in the quest for a gullible audience in the West ready to blame Israel. Only in this way can Hamas win its war.

Muravchik's book sounds the alarm for why Americans cannot let this happen. "For all its might, Israel remains a David, struggling against the odds to secure its small foothold in a violent and hostile region," he says. We must stand with Israel if it is to survive.

CEO needs your help

Dear CEO supporter,

I hope all is well with you and yours this summer. It has been a banner year for the Center for Equal Opportunity, as we continued in our relentless opposition to race-based policies by the Obama administration and its politically correct allies. That’s why we are asking for your help again--but first let me tell you about some of what we’ve been up to.

Take, for instance, the results of three huge court cases CEO was involved in this past year. The first was the Supreme Court’s decision in Fisher v. University of Texas, overturning the court appeals ruling that had upheld the University of Texas’s use of racial preferences in university admissions. 

CEO had filed a series of amicus briefs in this litigation--first in the U.S. Court of Appeals, then urging the Supreme Court to take the case, and then urging the Court to end racial preferences.  Before that, we also filed an administrative complaint against the University’s policy.

The Supreme Court was right to tell the lower court to take a harder look.  In a country that is more and more multiracial and multiethnic, our laws and institutions simply cannot sort Americans by skin color and what country their ancestors came from.

The second landmark Supreme Court case we’ve been involved in was the challenge to Section 5 of the Voting Rights Act, Shelby County v. Holder. And we won! CEO is very excited the Court struck down as unconstitutional the coverage formula of Section 5 of the Voting Rights Act.  CEO had filed amicus briefs at both the petition stage and on the merits, urging this result.  In addition, CEO president and general counsel Roger Clegg and I had testified against re-enacting Section 5 when it was last before Congress.

And in the third case, Schuette v. BAMN, the Supreme Court has now upheld the constitutionality of a Michigan ballot initiative that banned, among other kinds of affirmative action, racial and ethnic preferences in admissions to public universities.

This is another case that the Center for Equal Opportunity has been involved with for a long time. We had joined amicus briefs with the court of appeals and the en banc court of appeals, and then also joined two briefs in the Supreme Court: one urging the Court to take the case and, when the Court did so, another urging it to rule the way it did. What's more, CEO studies of the heavy weight given to race and ethnicity at the University of Michigan helped galvanize public support for the ballot initiative in the first place, and Roger Clegg and I spoke in Michigan several times about the initiative in the run-up to its passage.

As we have been celebrating the latest important victory--and making sure its importance is not buried by the liberal media--I devoted my column to the decision, and Roger and I were both quoted widely in the media about the case (including the New York Times, New York Post, Chronicle of Higher Education, and Inside Higher Ed). Roger also appeared on the PBS NewsHour show to discuss the case, and coauthored a column for National Review Online. And he has written and distributed a paper that urges other states—and Congress—to do what Michigan did: ban racial preferences.

None of this would have been possible without the help of loyal supporters like you. But to continue our efforts, we need your help now more than ever.  Thanks to the sluggish Obama economy, CEO is facing a difficult budget crisis.  Yet no one does the work CEO does on these critical issues.  Although Fisher, Shelby County and Schuette were good decisions for us, there remains work to be done in both racial preferences and voting rights. And CEO is already doing it. 

Once again, for example, the race baiters--including, amazingly, President Obama himself—have been out in full force telling the public that the Voting Rights Act case ruling turned back the clock on civil rights. But CEO was also out there giving countless interviews in mainstream media outlets, educating the public that the Court ruling simply made one thing clear: that in 2014 there is no justification for treating some states unequally and subjecting only some to extraordinarily intrusive federal oversight, based on obsolete data.  This does not turn the clock back; it simply recognizes that times have changed.

What’s more, the Court’s decision will put an end to much of the politically correct racial gerrymandering that was the main use--along with challenging antifraud voter ID laws--to which Section 5 was put. 

As we predicted, liberals will try to undo the Shelby County voting rights decision by trying to pass new legislation that will, for example, seek to perpetuate politically correct racial gerrymandering. But CEO is working to blow the whistle and educate congressional staff on this issue:  In fact, we started that process even before the decision came down. And CEO board member Abigail Thernstrom last month testified before the Senate Judiciary Committee against a bad voting-rights bill.

As for racial preferences in university admissions, the Fisher case can be a useful tool--but only if the opponents of racial preferences use it. CEO will do just that, by systematically contacting schools all over the country and using freedom-of-information laws to make sure they are following the rules that the Court’s Fisher opinion has set out.

We already have a case we hope the Court will take next term that will help fight race-based discriminating in another context. We are supporting a petition asking the Court to review a case out of Texas in which the attorney general of that state is challenging the use of the “disparate impact” approach under the Fair Housing Act. This approach, which the Obama administration loves, leads to more race-based discriminating, not less.

All that I’ve discussed so far is just what the Center for Equal Opportunity has been doing in its Supreme Court litigation.  But there is much, much more that we do.  We help write and file briefs in the lower courts, too, on issues involving racial preferences and other race-based policies like “disparate impact.”  We testify before Congress and the U.S. Commission on Civil Rights on issues like whether felons should automatically have voting rights restored (no), whether there should be a commission set up to lay the groundwork for African-American reparations (no again), whether there should be federal legislation on racial profiling (also no), whether Native Hawaiians should be declared an “Indian tribe” so that they can be eligible for preferential treatment (you guessed it:  no), and on many other bills.  

We have pointed out that Obama administration legislation like the Dodd-Frank bill and Obamacare contained, in addition to their other problems, unconstitutional racial preference provisions, and we have worked with Congress to get rid of federal contracting preferences based on race.  Every day, we check the Federal Register for what the Obama administration is up to in our areas, and have filed dozens of comments and written dozens of articles where we have found problems -- which is just about every week.  We successfully opposed the nomination of radical lawyer Debo Adegbile to head the Justice Department’s civil rights division.

And all that is just at the federal level:  We keep busy at the state and local level, too. I already discussed how CEO helped pass the anti-racial-preference ballot initiative in Michigan. To give another example, we have frequently weighed in against racial contracting preferences at the state and local level.  And, in the court of public opinion, we tirelessly write columns, blog, and speak, not only on television and radio, but on university campuses across the country.

Racial and ethnic preferences are a destructive force in our society.  They are unfair, divisive, and mismatch people and schools or jobs. But they are not going to stop – in fact, they will continue to spread – unless there is pushback.  The intellectuals love them, sleazy politicians love them, Al Sharpton and Jesse Jackson love them.

Fortunately, there are ways to push back:  in the courts, in Congress, and in the court of public opinion. But there is only one organization that is devoted to this pushing back:  the Center for Equal Opportunity.

But we need your help to do all this. And we need your help to continue to fight back against the politically correct race profiteers like Al Sharpton and Jesse Jackson, and their pals in the media.

The success we’ve recently had before the Supreme Court is nothing new for CEO. From its founding in 1995, CEO has helped to drastically change the political and legal landscape on:

  • Racial preferences in education, contracting, and employment;
  • The detrimental effects of bilingual education;
  • The rise of multiculturalism in our schools and other institutions; and
  • The importance of assimilation and the impact of immigration on our society.

But with liberals in charge of the Senate, White House, and most universities, we need your support now more than ever. The Obama administration will continue to be disastrous for Americans like you and me without CEO around to challenge them on civil rights issues. That’s why your support right now is so crucial. 

CEO has led the nationwide fight against racial preferences -- so-called “affirmative action.” We’ve persuaded more than 200 schools to open up their minority-only scholarships to people of all colors. We’ve exposed racial preferences in admissions with hard-hitting studies at over 60 colleges and universities. And we’ve had success after success in all three branches of government. 

Will you help by sending a generous, emergency donation of $5,000, $2,500, $1,000, $500, $100, $50 or whatever you can afford today? Any donation before the end of the summer will be a big help at this critical time.  As always, 100% of your donation is tax-deductible to the fullest extent of the law.

I truly appreciate all you’ve done for us in the past and we hope to hear from you again very soon.

Sincerely,

Linda Chavez
Chairman

Stop the Fear Mongering

The good news at the U.S. border with Mexico is that the flood of children from Central America crossing illegally, now totaling nearly 60,000, has slowed. The bad news is that those whose aim it is to stop legal immigration reform are using the kids to fan fears and turn a humanitarian crisis into political blackmail for anyone even contemplating positive changes in current law.

At the height of the crisis in late June, some 350 unaccompanied minors were crossing illegally each day. Last week that number had dropped by more than half. Clearly, news stories and a U.S. government-funded ad campaign in Central America, as well as word of mouth from immigrant communities in the U.S., have spread the word that kids who make it into the U.S. won't be able to stay permanently. The administration has already begun to deport children who came with parents, and even pro-reform advocates are pushing for changes in law that would treat Central American youngsters the same as Mexicans, allowing for expedited removal.

In the meantime, however, the children already here are suffering in overcrowded, unsanitary conditions -- and fearmongers are peddling disinformation to discourage communities from allowing the children to be housed more humanely. Protests have led ugly mobs to confront buses carrying the children to centers away from the border. Politicians from both parties have taken a hard line against allowing children to be housed in their communities. And cable news, talk radio and the blogosphere are filled with stories about an "invasion" of illegal immigrant children bringing disease and gang violence into the American heartland.

The worst stories suggest that the kids are carrying life-threatening infections. In what may be the most reprehensible allegation, Rep. Phil Gingrey, R-Ga., a retired ob-gyn, wrote the Centers for Disease Control and Prevention warning that the children may carry "swine flu, dengue fever, Ebola virus and tuberculosis." Ebola virus! The deadly virus -- which leads to organ failure and bodily fluids leaking from the eyes, noses and other orifices of victims, killing about 90 percent of those affected -- has never been found outside of Africa.

In an interview with NBC's Luke Russert, Gingrey acknowledged there weren't any known cases of Ebola among the kids, but then threw in smallpox as a possibility: "Smallpox, some of the infectious diseases of children, all of these are concerns." The last known case of smallpox in the world occurred in 1978. The World Health Organization declared the disease eradicated in 1980, and it exists only in a few laboratories (including one run by the CDC, which recently uncovered vials containing the virus in a forgotten storage closet outside of Washington D.C.).

The children come from countries that have a 93 percent vaccination rate against most childhood diseases, and given their social status in families able to afford the thousands of dollars in fees to transport them north, they are very likely to be among those who have been vaccinated. But in any event, the children receive vaccinations once in U.S. custody.

A few cases of flu, including one confirmed case of swine flu, and four of children who tested positive for TB have been found -- but the incidence in a population this large hardly suggests the danger of epidemics breaking out. More common are cases of scabies and head lice, both diseases carried by parasites: the first, a small mite that gets under the skin and causes a rash; the second, a problem that affects an estimated six million to 12 million mostly white children in the U.S. each year, according to the CDC.

There's little evidence to support the claim that the influx of unaccompanied minors includes many gangbangers, either. There is a direct link between the crisis and violent drug cartels and gangs -- but not what talk-show hosts would lead you to believe with their file-footage pictures of tattooed MS-13 members already in U.S. jails.

The kids are fleeing gangs in their home countries, not coming here to establish them. The whole breakdown in civil society, which has become endemic in parts of Central America, is a direct result of the drug trade that feeds America's nearly insatiable appetite for cocaine, meth, heroin and other illegal drugs. It's U.S. demand for illegal drugs coupled with the successful U.S. interdiction of drugs through the Caribbean that created the problem in Central America. As The Wall Street Journal's Mary Anastasia O'Grady recently noted, "This crisis was born of American self-indulgence. Solving it starts with taking responsibility for the demand for drugs that fuels criminality."

Medicare Solution

Next week I'm scheduled for a cervical spinal fusion that costs upward of $100,000, but I won't be paying for it. Like 50 million other Medicare recipients, I will receive the medical care I need more or less free of charge thanks to Medicare. It's something most seniors take for granted -- a benefit we believe we're entitled to because, after all, we paid Medicare taxes all our working lives. But as it happens, those taxes aren't nearly enough to pay for the benefits we receive from the system -- at least for most of us. Despite the fact that I still work and pay hefty Medicare taxes, I am likely to become one of those people who becomes a drain on the system if I live long enough (my mother died at 90, my grandmother at 95).

Medicare is fast becoming unsustainable, especially as baby boomers like me enter the system. We may be living longer and healthier lives, but it's costing taxpayers more than we can afford unless something changes. Debate in Washington has centered on fixes that are likely to be painful: lower benefits and restrict procedures; raise the age of eligibility; or substantially increase taxes to pay for the system. But a new idea emerged this week from a study that shows that one demographic group in our population actually takes less out than they contribute: immigrants. Allow more people to immigrate here, and we keep Medicare solvent longer.

The study, "Staying Covered: How Immigrants Prolonged the Solvency of One of Medicare's Key Trust Funds and Subsidized Care for U.S. Seniors," demonstrates how it might work. Prepared for the Partnership for a New American Economy by Dr. Leah Zallman, an instructor at Harvard Medical School, the study shows that immigrants contribute billions more in Medicare taxes than they take out of the system.
Zallman looked at data from the Current Population Survey and the Medical Expenditures Panel Survey for the years 1996-2011. She found that in that period, immigrants contributed $182.4 billion more to Medicare's Hospital Insurance Trust Fund than they used in benefits. In 11 of the 16 years examined, immigrants contributed $10 billion more each of those years than they took out.

The reasons are largely demographic: Immigrants are younger and more likely to be of working age than the native-born population, and some older immigrants don't satisfy the requirements to participate in Medicare. In order to draw benefits, recipients must have worked and paid Medicare taxes for 40 quarters. As for illegal immigrants -- many of whom, contrary to popular myth, pay taxes, including Medicare -- they likely will not ever be able to draw benefits because they have used false Social Security numbers.

But even those immigrants who receive Medicare apparently use fewer benefits than the native-born, according to Zallman's analysis. Medicare's Supplementary Medical Insurance Trust Fund pays for doctor's visits, lab tests and preventive care for Medicare patients, and when the SMI doesn't have sufficient funds, Congress must appropriate additional money to fully fund benefits. According to her calculations, immigrants took an average of $776 in 2011 from the SMI trust fund, and non-citizen immigrants took even less, around $330, while the U.S.-born took $951. In only one area did immigrant spending exceed that of the native-born: Home health-care agencies received more for immigrants' care than for the U.S.-born.

It's hard to know precisely why immigrants use fewer health services. Some studies suggest that immigrants are less likely to engage in unhealthy habits like smoking, drinking and using illegal drugs, and their longevity rates reflect healthier lifestyles. But whatever the reason, it's clear that immigrants improve the health profile of the population. And now, it turns out, they are helping pay the freight for the rest of us, as well.

So next week when I check out of the hospital, in addition to thanking my doctors (both immigrants, by the way), I'll thank those millions of immigrants whose excess contributions helped pay for my stay. If we want to solve the looming Medicare crisis, maybe inviting more immigrants here should be part of the solution.

Fisher v. University of Texas – again!

About a year ago, the U.S. Supreme Court overturned a court of appeals decision that had upheld the University of Texas’s use of racial and ethnic admissions preferences, ruling that the court of appeals had not been strict enough in its scrutiny of the school’s discrimination against the plaintiff, Abigail Fisher.  Last week a divided court of appeals panel on remand has again upheld the university’s discriminatory admissions policy (here are the judges’ opinions). 

It’s likely that this case is now headed back to the Supreme Court. The good news is that the court of appeals ruled on the merits — it did not deny Ms. Fisher’s standing or send the case back to the trial court — and that there is a strong dissent.  For most of the balance of this week’s email, I’d like to offer a few more thoughts on the panel’s decision.

By the way, the Fisher case is one in which the Center for Equal Opportunity has been involved for a long time, filing two briefs in the Supreme Court and two in the court of appeals — and even filing an administrative complaint before the lawsuit was brought.  And we plan to join and help write a brief appealing from last week’s panel decision, too.

*          *          *

First, the majority opinion says that it is all right to engage in racial discrimination in order to achieve the educational benefits that accrue from having a critical mass of this or that racial group.  Yet the precise nature of the “educational benefits” at the University of Texas is never defined, nor is the term “critical mass.”  And how, in particular, can a court ensure that there is the “narrow tailoring” that Justice Kennedy’s recent opinion for the Supreme Court demanded in this case – that, specifically, there are no race-neutral ways of achieving the relevant educational benefits – when these terms are undefined?  As a practical matter, it seems that the framework erected by the Supreme Court in Grutter v. Bollinger — the 2003 decision in which the Court upheld the use of racial preferences — is not working very well.

Second, the reason that racial preferences are being used in addition to Texas’s “Top Ten Percent Plan” (or “TTPP,” which grants automatic admissions to anyone in the top ten percent of the graduating class of any Texas public high school) is that the TTPP admits the “wrong kind” of blacks/Latinos — that is, not to put too fine a point on it, they are lower class instead of upper class.  But surely some blacks/Latinos of the “right kind” are admitted under the TTPP, and surely some of the blacks/Latinos admitted under holistic review are of the “wrong kind.”  Yet the University seems confident that it can predict that the quality of the random interracial conversations occurring on campus will be improved by drawing more from this pool of blacks/Latinos versus that pool of blacks/Latinos — so confident, in fact, that it is willing to overlay racial preferences on top of the TTPP.  

And this takes us back to my first point:  Precisely what “educational benefits” from these conversations are heightened not only by having different amounts of melanin, but different incomes within a melanin group?
It is quite true that one cannot assume that all African Americans and all Latinos think alike or have the same backgrounds.  But that is precisely why all stereotyping, preference, and discrimination based on race should be rejected.

To elaborate just a bit more:  Will there be some marginal increase in “educational benefits” if race is considered among the non-TTPP applicants?  Not on this record.  But even if there were, those marginal increased benefits have not — and cannot — be shown to outweigh the costs of inserting race into the admissions mix.  CEO supporters may recall by now my litany of costs (see my discussion in the Chronicle of Higher Education, here); I think it is important that we force the courts somehow to consider them (especially, for example, the well-documented problem of setting up for failure the black and Latino students who are mismatched at schools that admit them with lower qualifications than the rest of the student body).

Thus, something is wrong with the courts’ framework when, after all the attention that the “mismatch” issue has drawn, neither the majority opinion nor the dissent mentions it.  Likewise, the courts should require schools  to explain with some precision what the educational benefits in the particular context at issue; it cannot be the case that those benefits can be taken as a given for the University of Texas’s engineering school even if they have been established for the University of Michigan’s law school.  The more we can force schools to document the purported benefits of these random interracial conversations, the better.

One more, not unrelated point:  The race-neutral alternatives that Justice Kennedy demanded to be considered ought to be to the end of achieving some level of educational benefits, not to increasing the number of “underrepresented” minority students per se.

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By the way, there has just been published an outstanding article by Peter Schuck on the topic of racial preferences in university admissions.  It’s in the current issue of National Affairs, and it’s really, really good.

Here’s the powerful conclusion:

The public opposition to race-based affirmative-action programs on cam­pus is amply justified. Affirmative action defies — indeed flouts — equal protection and other liberal values. It rests upon a diversity rationale that is theoretically incoherent and in fact produces little if any of the diversity value that alone might justify it (and then only under a dubious rationale). It cannot satisfy the constitutional tests that the Court has laid down and reaffirmed as recently as last year. It has failed to increase its political support in the nation after four decades of energetic advocacy. It fosters corrosive racial stereotypes, poisons race relations, and encourages opac­ity, dissimulation, and even evasion by its administrators and advocates.

And if that were not enough, affirmative action seems to grievously harm many of its supposed beneficiaries — not to mention the non-preferred groups who are disadvantaged by the practice.

We are far from putting America’s history of racial intolerance and injustice behind us, but affirmative action fails to rectify these evils and instead harms both our students and our society as a whole.

Obama Administration Follies

Recently the Obama administration’s Department of Education published a notice in the Federal Register, soliciting applications for the award of a new program:  “The objective of this program is to support a Center for the Study of Distance Education and Technological Advancements at an institution of higher education … to study and develop best practices in postsecondary education for online education and the use of technology-based teaching and learning tools.”  Okay, but then the notice goes on to state that, if a school is more than 85 percent white, then it is not eligible.  Period.

As discussed here on an excellent new website, “The New American Civil Rights Project,” this is clearly illegal and unjustifiable.  The administration’s Federal Register notice, by the way, gives no explanation for the discrimination, nor, of course, any legal justification for it.  This absolute racial requirement is not given “strict scrutiny,” which is what the Supreme Court demands for race-based classifications, but absent-minded non-scrutiny.

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Here’s another eyebrow-raiser from the Obama administration.  In a recent case, the Justice Department socked a landlord for $80,000 because it was too strict in the rules it had for unsupervised children playing in common areas (rules adopted, apparently, after “my plants got destroy [sic], rocks in the pool & dirt, sprinklers broken, Tree branches broken, grass damage,” to quote the landlord).  This, we are told, is discrimination in violation of the Fair Housing Act.

So, it’s not illegal discrimination to bar a school from participation in a federal program because of the school’s racial makeup, but it is illegal discrimination for a landlord to tell tenants that children playing in common areas have to be supervised.  Sure, that makes sense. 

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The administration’s Equal Employment Opportunity Commission last month issued new “Enforcement Guidance” on “Pregnancy Discrimination and Related Issues,” and it asserts that “disparate impact” causes of action may be brought in this area under federal law.  Under the “disparate impact” approach a practice that is nondiscriminatory on its face, in its motivation, and in its application is still illegal discrimination if it has a disproportionate result.  In this case, for example, if an employer had lifting or mobility requirements that were harder for pregnant women to meet than other employees, he could be held liable.  

I’d just like to flag the fact that, once upon a time – when I was there – the U.S. Department of Justice took a contrary position, as discussed in this majority opinion and dissent from a federal court of appeals. The Supreme Court, to my knowledge, has not resolved this issue.

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The Obama administration has also indicted a Canadian businessman for fraudulently claiming that he met federal goals for using minority- and female-owned subcontractors when, in fact, he hadn’t.  Fraud is wrong, but there’s an obvious defense here, isn’t there?  Simply claim that Canadians are an ethnic minority group, and that, while physically a businessman, this defendant identifies him/herself emotionally and psychologically as a businesswoman (see next item).  Sure, it’s silly, but no sillier than the underlying federal program.

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Charlie A. Dooley, the county executive for St. Louis County, Missouri, has apparently decided to follow President Obama’s example, and simply sign an executive order when the legislature (in his case, the county council rather than Congress) won’t do his bidding. He then vetoed a subsequent bill because he didn’t like it as much as his executive order. 

The executive order he has signed is Obama-esque in its content, too, setting percentage “goals” (read “quotas”) by race for county contracting. What’s even more bizarre, though, is that the reason given for his contracting preferences is to increase workforce “diversity.”  That raises all kinds of additional constitutional problems and factual questions:

1. Has it been shown which groups are underrepresented in which workforce?
2. Has it been shown that all the companies being given contracting preferences have more underrepresented workers than all the companies that aren’t being given contracting preferences?
3. Of course, racial preferences in this context can be used only to remedy discrimination, but has the underrepresentation of some groups in the workforce been shown to be caused by discrimination?
4. And even if the answer to 3 is “yes,” are there no better ways to remedy the discrimination than the roundabout method of giving contracting preferences (especially if the answer to 2 is “no”)?

Another nice touch: The executive order defines the various favored racial “minorities” to include those who “Maintain cultural identification through tribal affiliation or community recognition with any of the original peoples of the North American continent, or demonstrate at least one-quarter descent from such groups.” 

Mr. Dooley faces a primary vote this week, by the way, and it’s speculated that what we have here is some racial politicking by him.

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Finally, this story in the Boston Globe last week discussed a recent survey that resoundingly confirms the conventional wisdom of Massachusetts as a very liberal state – with one notable exception. “Amid those liberal tendencies, though, was an outlier: a stark opposition to affirmative action. Just 24 percent agreed that qualified minorities should receive special preference in hiring and education, while 69 percent disagreed.” 

This is no surprise, really: Poll after poll shows that Americans just don’t like policies that discriminate on the basis of race. Go figure.

We're Talking To the Wrong Iranians

When it comes to an agreement with Iran about its nuclear program, no deal is better than a bad deal. Secretary of State John Kerry delivered the news to President Obama this week that a deal was unlikely by the July 20th deadline agreed to at the beginning of talks last September -- which no doubt disappointed his boss, who is desperate for some foreign policy success to point to. But unless Iran is willing to give up its program -- and dismantle the uranium-enriching centrifuges it currently operates and destroy its existing stockpile of heavily enriched uranium -- economic sanctions should not be lifted.

Unfortunately, the U.S. negotiating position has been far more conciliatory to the Iranians. We've virtually conceded Iran's right to enrich uranium, with the caveat that we expect them to freeze their capabilities of producing weapons-grade nuclear material and will ensure their compliance through inspections. If they agree, we will lift the sanctions that have helped cripple the Iranian economy.

If Iran truly needed nuclear power for purely peaceful energy-producing purposes, it could allow foreign companies to build and operate the reactors.  They want to keep enriching uranium because they want to build nuclear weapons -- they already have an ICBM program whose only purpose is to build delivery systems to target the West, including the United States.

The impetus behind the talks is the naive sense in Washington and elsewhere that new leadership in Iran makes a deal possible. The election of President Hassan Rouhani gave many in the West hope that Iran was entering a more moderate stage. But Rouhani's actions should dispel that myth. Internally, he has been as repressive as his predecessors, executing hundreds of Iranians in public hangings that give lie to the hope he is a moderate. And his own words in the past show he's an expert manipulator who should not be trusted.

In his published memoirs, Rouhani bragged that in the past Iran has agreed to suspend programs in areas where they had no technical problems, knowing that they could quickly revive those programs when needed. He also boasted that during talks about its nuclear program with England, Germany and France in 2003, Iran was busy building a uranium conversion facility that produced heavy water and yellow cake uranium and boosted the number of centrifuges to 3,000 over the next two years. Negotiations were simply a way to make it appear that Iran was willing to slow down its nuclear program, while rushing ahead as quickly as it was technologically capable.

We've been fooled over and over again by the Iranians. Why should this time be different?

The only way to ensure a nuclear-free Iran is if the mullahs in power are gone. But the U.S. does nothing to promote a democratic future for Iran. Obama turned a deaf ear to thousands of protesters in Tehran in 2009 who sought change. He kept the main Iranian opposition group in exile, the MEK, on the U.S. terrorist list until a U.S. court basically forced the State Department's hand to either show evidence that the group was a threat or delist them.

Former New York City Mayor Rudy Giuliani summed up the problem of negotiating with Iran in a gathering of some 100,000 MEK members in Paris in June, for which I was the emcee: "We went through this before. They promised they weren't going to enrich uranium. And then they were caught red-handed three times enriching uranium. Who was in charge of that program for Iran? Rouhani the 'reformer,' who brags about it in his memoirs that he fooled us, that he cheated us, that he lied to us. And who caught him? Who caught him in his lies? You did, the MEK."

When it comes to a nuclear-free Iran, the Obama administration is talking to the wrong people. Rouhani and the ruling mullahs are not the future of Iran. No agreement with them would be worth the paper on which it's written. At least MEK leader Maryam Rajavi understands what the West should be demanding. "Compel the mullahs to shut down their entire bomb-making, enrichment and heavy water program," she told her followers in Paris. Shouldn't we make the same demands?