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Can There Be Nondiscriminatory “Discrimination”?

Last week, the Supreme Court heard oral arguments in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, a case in which the Center for Equal Opportunity has been heavily involved.

The question presented in this case is: “Are disparate-impact claims cognizable under the Fair Housing Act?”

Under a disparate-impact claim, discriminatory motive is irrelevant: It need not be alleged nor proved, and it doesn’t even matter if the defendant proves that there was no discriminatory motive. If a policy or procedure results in a disproportion of some sort — not only on the basis of race, color, or national origin, but also religion, sex, or familial status (that is, having children) – then that’s enough, even if the policy is nondiscriminatory by its terms, in its intent, and in its application. The defendant can prevail only by showing – to the satisfaction of a judge or jury who may know or care nothing of the defendant’s needs – some degree of “necessity” for the policy.

The Supreme Court should reject this approach to civil-rights law enforcement.

1. Text. This approach is flatly inconsistent with the Act’s text.  The text uses not only the phrase “because of” race but also “on account of” and “based on.”  All of these phrases are naturally read to require a showing of discriminatory intent.  The phrase “on account of” also appears in a section of the Act that bans coercion and intimidation of those exercising fair-housing rights, and intent is clearly implied there; and the “because of” and “on account of” language also is used to delineate certain fair-housing violations as crimes, and criminal prosecutions cannot be based on a disparate-impact theory. The disparate-impact approach would also render superfluous many of those provisions in the statute regarding the disabled.  For instance, the failure to make or allow “reasonable modifications” and “reasonable accommodations” could have been attacked under a disparate-impact theory without those provisions.

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The Obama administration’s brief stresses three brief, scattered in the 1988 amendments to the Fair Housing Act:

  • Nothing in this title limits the applicability of any reasonable local, State, or Federal restrictions regarding the maximum number of occupants permitted to occupy a dwelling.
  • Nothing in this title prohibits conduct against a person because such person has been convicted by any court of competent jurisdiction of the illegal manufacture or distribution of a controlled substance as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802).
  • Nothing in this title prohibits a person engaged in the business of furnishing appraisals of real property to take into consideration factors other than race, color, religion, national origin, sex, handicap, or familial status.

The Obama claim is that there would be no reason for these provisos unless the Act generally allowed disparate-impact causes of action. Of course, it is not particularly surprising or damning that there should be some redundancy in a long statute like this. Legislation is not poetry, and lobbyists are paid to put in suspenders even if a belt might do. 

But it is also worth noting that all three provisos involve instances where non-protected characteristics are close enough to protected characteristics that Congress wanted to spell out what was and wasn’t protected a bit more — particularly since Congress was adding “familial status” and “handicap” to the statute at that very time.

To elaborate: The 1988 amendments expanded the Act to cover not just race, etc. but also “familial status” — that is, to make it illegal to discriminate against families with children. But an occupancy limit on, say, an apartment obviously appears on its face to get close to that line.

Another sort of discrimination prohibited by the 1988 amendments was against the handicapped. Those with a record of drug addiction are considered to fall into this category (so long as it is not “current, illegal drug use . . . or addiction”). So here Congress would have been aware that discrimination against someone because of their record of drug crimes gets close to the line of handicap discrimination. The war on drugs was well under way, and no doubt our legislators wanted to make sure no one could claim their bill was soft on drug traffickers.

As for real-estate appraisals, bear in mind again that disability and familial status had just been added to the statute. Designing (or redesigning) property so that it is accessible to the handicapped can affect its value; changing a building so that it is kid-friendly can, too. What’s more, in both instances the result might be a building that is more expensive to construct but less desirable to the large class of individuals who aren’t being accommodated (the able-bodied, and singles or couples). Either way, Congress did not want real-estate appraisers to be held liable for market pricing that was not their doing.

So these provisions were added to clarify in three tricky situations what was and wasn’t disparate treatment — not to ban (only) certain kinds of disparate-impact lawsuits.

2. History. If there is no textual support for a disparate-impact cause of action in the original Act or its 1988 amendments, and since the legislative history points in the other direction as well, the remaining argument to support disparate impact in fair housing law is that some lower courts had recognized a disparate-impact cause of action under the original 1968 version of the Act, and so Congress implicitly endorsed the approach when it reenacted the statute in 1988 with full knowledge of those decisions.

But Congress also knew that the Supreme Court had not resolved this question. During the summer of 1988, while the amendments were before Congress, the Justice Department was arguing to the Supreme Court that it ought to grant review in a New York case and rule against a disparate-impact approach. In other words, Congress could hardly be said to have been endorsing settled case law by passing the 1988 legislation, because no settled case law existed.

3. Deference.There are some newly minted Obama administration regulations that endorse the disparate-impact approach, and it is argued that the Court should defer to that interpretation of the statute. But there are a number of good reasons why these regulations are entitled to little deference, even beyond the fact that they are inconsistent with the plain words of the statute.

The Fair Housing Act has been on the books since 1968, and during that time the executive branch has sometimes endorsed the disparate-impact approach and sometimes not. For example, President Reagan explicitly rejected the approach in signing major amendments to the Act, and his Justice Department argued against it in a brief to the Supreme Court; the Bushes didn’t think much of it, either.

The Obama administration, on the other hand, is attempting to game the system here; it orchestrated a shady deal with the City of St. Paul to get it to withdraw an earlier case, and meanwhile worked on promulgating those new regulations. “We were afraid we might lose disparate impact in the Supreme Court because there wasn’t a regulation,” said Sara Pratt, an official in the Department of Housing and Urban Development.

In any event, the principle of deference ought to be trumped in this case by the “constitutional-doubt canon.”  The Justices have repeatedly acknowledged that a statute mandating the disparate-impact approach also can encourage race-conscious decision-making; this of course raises serious constitutional issues. The approach raises further constitutional problems here by altering the state-federal balance in far-reaching ways. For example, it renders race-neutral rules – like rules for preserving order in public-housing projects – suspect; the approach will also result in the federal micromanagement of insurance practices, which is at odds with the McCarran-Ferguson Act, a point emphasized in a recent district court decision striking down the Obama regulations.

4. Coherence.One would also expect that, if a statute contemplates use of the disparate-impact approach, it would answer some fundamental questions like how to measure the kind and degree of disparate impact that is required and what sort of rebuttal is needed. But there’s none of that, and the resulting problems are myriad and severe.

For example, what should decision-makers do if a practice has a disparate impact in one location but not in another?  Or if the impact ebbs and flows over time?  What should landlords do if a policy (for instance, excluding felons as tenants) has an unfavorable disparate impact on potential tenants of a particular race, but is welcomed by the incumbent tenants who are predominately of that same race?

And what if a practice is favorable for some racial minority groups (say, Asian Americans) but not for others (say, Latinos) – and, what’s more, the opposite is at the same time true for some minority subgroups (thus, unfavorable for Hmong but favorable for Cuban Americans)? And remember, too, that “majority” groups – whites and men and Christians, for example – must be able to bring these lawsuits, too, or you’ve added an even greater equal protection problem.

Thus:  (a) a foreclosure policy may have no disparate impact on a particular group in pre-recession 2006, but a severe one in 2009; (b) an income-requirement may have no disparate impact on Latinos in Nashville but a severe one in Denver; this may mean that two companies with identical policies have very different liability risks, or the same company may be liable in one city but not in the other (but should the cities be considered separately if it’s the same company?); and (c) the use of credit scoring may have a disparate impact on Latinos but not Asians, but there may be no disparate impact on Cubans and a severe one on the Hmong.

There’s an even more fundamental problem: It is often hard to say whether the impact a practice has on a group is adverse or not.  In the Texas case, for example, the complaint is that low-income housing is being disproportionately located in black areas.  But poor black people might prefer to have housing opportunities near where they already live rather than a long way away, and they could complain about the disparate impact of deliberately changing the system so that they had fewer such opportunities.  Yes, it might interfere with social engineering that would force blacks to relocate to white areas, but might not even the aim of greater integration be met, at least to some degree (depending on racial breakdown of low-income housing recipients – a breakdown that might vary from city to city and county to county) by encouraging non-blacks (not just whites, but also Latinos and Asians) to live in black areas?

These problems make it difficult to decide not only whether there is a disparate-impact in the first place, but also how to weigh properly the defendant’s rebuttal, which in the public housing context – versus, say, employment – will often involve balancing myriad and hard-to-quantify interests. In sum, it is astonishing to interpret a national civil-rights statute in a way that makes identical conduct in one city illegal while allowing exactly the same conduct in another city, just because of the different racial makeup of the two cities.

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Let me just add three brief points. First, it’s frequently asserted that we must allow “disparate impact” causes of action because actual discrimination (“disparate treatment”) is difficult to prove. But this is simply not true: The overwhelming majority of housing cases brought and won by the federal government are disparate-treatment cases, as anyone who reads the Department’s press releases every day (as the Center for Equal Opportunity does) can attest. 

Second, many on the other side are arguing that you need the disparate-impact approach in order to go after segregated housing patterns. But of course that is not true if the segregation stems from actual discrimination. And if it is not, then using the disparate-impact approach raises all the usual problems inherent in the disparate-impact approach. For example, how much racial balancing is to be required? What if the reasons for the racial imbalance reflect voluntary decisions or economic realities? What sort of remedies will be required (like deliberate assignments on the basis of race), and what if those remedies end up hurting people (including minorities) on the basis of race? And so on. Besides, if racial imbalances in housing patterns are a result of voluntary choices by individuals, then it’s unclear why this is a huge evil that the government needs to fix.

Finally, I’d note that the National Association of Mutual Insurance Companies submitted excellent testimony on this issue at November 2013 Congressional hearings, which can be read here (starting at page 110 in the hard-copy pagination). 

Here’s hoping the Court does the right thing and puts an end to this nonsense.

Democratic Revolt on Iran

In what was one of the most stunning rebukes of a sitting president by a member of his own party, Sen. Robert Menendez accused President Obama of taking his talking points on Iran "straight out of Tehran" after the president's State of the Union address. It's not the first time the ranking member of the Senate Foreign Relations Committee has disagreed with the president. In early January, when the president announced his unilateral opening to Cuba, Menendez said the administration "got absolutely nothing for giving up everything that the Castro regime wants." Menendez gives hope that there are at least a few Democrats who understand the nature of totalitarian regimes.

Menendez may not be Henry "Scoop" Jackson, the legendary Democratic hawk who was the scourge of the appeasement wing of his party in the U.S. Senate from 1941 to 1983, but he knows a bad deal when he sees one. And the president's line on Iran's nuclear program -- that "we've halted the progress of its nuclear program and reduced its stockpile of nuclear material" -- is nothing short of a lie. Now the question for Democrats will be whether others will join Menendez in pushing for tougher sanctions against Iran. The president has already announced he will veto a sanctions bill, but Menendez would need only 12 other Democrats to join the 54-member Republican majority to overturn a veto.

Wishful thinking? Maybe. But 11 of the current Democrats in the Senate have co-sponsored Iran sanctions legislation along with Menendez. If all of them could be persuaded to vote to overturn a veto, Menendez would need only one more, assuming the GOP ranks hold firm. After all, the stakes are high enough that fear of what Iran could do with a nuclear arsenal might trump the usual partisan politics.

Menendez has introduced a bill with Republican Mark Kirk of Illinois that would apply tough new sanctions if the talks do not produce an acceptable agreement by June 30. Other bills would attempt to force the White House to submit any pact for a Senate vote, which the president has already signaled he won't do.

The administration's negotiations have so far produced nothing but additional time for Iran to build weapons. The interim agreement that the administration credits with "halting" Iran's nuclear program allows Iran to continue to enrich uranium to 3.5 percent purity in unlimited quantities, which is approximately 60 percent of the purity needed to produce weapons-grade material. While the talks have dragged on, Iran has already enriched enough uranium to quickly produce two bombs. Iran is expected to have enough enriched uranium to produce a third bomb by June, when the deadline for a deal lapses -- though the administration has already signaled it will give Iran more time.

Iran is also pursuing enriching plutonium for nuclear weapons. Under the interim agreement that governs the talks, Iran continues its work on the Arak heavy-water reactor, building off site the parts that can quickly be assembled to make the reactor capable of enriching plutonium to nuclear grade when it chooses. The Iranians also have announced they will build two more light-water plutonium reactors.

In addition, Iran continues toward development of an ICBM. Recent analyses suggest they may have a system by the end of this year. Yet, the president thinks the Iranians should be given still more time before they pay any price for their subterfuge.

As evidenced in his cocky performance in the State of the Union address, the president still believes in his own supreme charm and powers of persuasion, which to date have yielded no foreign policy successes. He may ingratiate himself with the Elizabeth Warren wing of the Democratic Party by following this path, but he's risking America's security -- and the world's -- in the process.

Does the Democratic Party really want to be the party of nuclear proliferation, turning a blind eye while one of the most dangerous regimes in the world builds bombs and the capability to deliver them anywhere in the world?

The Democrats need someone who puts American interests first.

Hillary Clinton certainly won't be the one to do so. She has joined Obama in opposing new sanctions, calling them "a very serious strategic error." Had she taken a tougher line, she might actually have proved herself more than the Obama lackey she was during her tenure as secretary of state.

It's important the president be stopped, and the GOP can't do it alone. If ever there was a time for some cooperation across the aisle, it's now. Good for Menendez for stepping up to the challenge.

What Kinds of Anti-Asian Discrimination Are Politically Correct?

On November 25, the New York Times ran an op-ed by Yascha Mounk, who teaches expository writing at Harvard, about his school’s policy of discriminating against Asian Americans in admissions and, in particular, the policy’s historical parallels with Harvard’s anti-Jewish quotas of yesteryear.  All good stuff, and it’s good that the Times ran it.

The only off-note is two or three paragraphs that defend Harvard’s policy of giving racial preferences to African Americans and Latinos in order to achieve a “critical mass” of them.  That kind of discrimination is okay, says Mr. Mounk, but giving whites a preference over Asian Americans is not.

Really?  If you have a quota-floor for African Americans and Latinos, then you have a quota-ceiling for Asian Americans and whites.  But, as we have seen, Mr. Mounk doesn’t like quota-ceilings for Asian Americans.  So Mr. Mounk must be arguing either (a) that it’s okay to have a quota-ceiling for Asian Americans vis-à-vis nonwhites but not vis-à-vis whites, or else (b) he thinks that the quota-floor for African Americans and Latinos should be entirely at the expense of whites, and never at the expense of Asian Americans.  That is, either it’s okay to discriminate against Asian Americans in favor of African Americans and Latinos but not in favor of whites, or else it’s okay to discriminate in favor of African Americans and Latinos against whites but not against Asian Americans.

Now, can either (a) or (b) be justified?  The first hinges on their being something particularly unobjectionable about discrimination in favor of any “underrepresented” minority group, and the latter on there being something particularly unobjectionable about anti-white discrimination.

I don’t think that Mr. Mounk is arguing (b), and I don’t think that there’s anything in the Supreme Court’s “diversity” caselaw to support (b) either.  So we are left with (a).

But wait:  If it is okay to give any “underrepresented” group a preference over any “overrepresented” group, then why shouldn’t it be permissible to discriminate against Asian Americans in favor of whites?  After all, Asian Americans are much more “overrepresented” at Harvard than whites are.  In fact, of the four groups we have been talking about — whites, African Americans, Latinos, and Asian Americans — only whites are significantly “underrepresented” in comparison with the general population, according to Harvard’s own numbers.  And this is without drilling down further:  Surely there are some white subgroups (Eastern European non-Jews, for example) who are outnumbered even in absolute terms by some Asian subgroups (Chinese Americans, for example).

The best approach, though, is to say it’s all spinach (discrimination), and to hell with it.

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“Academic Science Isn’t Sexist.” So says another op-ed in the New York Times, of all places, so it must be true.  A key paragraph:  “So if alleged hiring and promotion biases don’t explain the underrepresentation of women in math-intensive fields, what does? According to our research, the biggest culprits are rooted in women’s earlier educational choices, and in women’s occupational and lifestyle preferences.”  Gee, fancy that. 

What’s more, a piece in The New Yorker re-explains that social psychology academia is biased against conservatives.  Wow. 

Sanity is breaking out in some unlikely places.

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Well, but let’s not get too complacent.  The New York Times also ran recently a dubious editorial titled, “Silicon Valley’s Diversity Problem.” 

Now, to the extent that the editorial is calling on companies to ensure that they do all they can to ensure that they recruit, hire, and promote the best qualified individuals regardless of race, ethnicity, or sex, no one should disagree.  But to the extent that the editorial is urging companies to weigh race, ethnicity, and sex in their recruitment, hiring, and promotion, it is asking companies to violate the law.

Title VII of the 1964 Civil Rights Act bans discrimination by public and private employers.  The Supreme Court has carved out a remedial, affirmative-action exception for jobs that have been “traditionally segregated,” but it is unlikely that this exception applies to Silicon Valley’s companies, which did not even exist in the era of traditional segregation.

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Worse was Brent Staples’s New York Times op-ed, “The Racist Origins of Felon Disenfranchisement.”  It is simply not true that felon disenfranchisement has racist origins. 

Even opponents of felon disenfranchisement have acknowledged that the practice “in the U.S. is a heritage from ancient Greek and Roman traditions” and “English colonists brought [this practice] with them.”  The scholars cited by Mr. Staples concede, “Restrictions [on felon voting] were first adopted by some states in the post-Revolutionary era, and by the eve of the Civil War some two dozen states had statutes barring felons from voting or had felon disenfranchisement provisions in their state constitutions.” That means that over 70 percent of the states had these laws by 1861 — when most blacks (except in New England) could not vote in any case. 

It is true that, during the period from 1890 to 1910, five Southern states passed race-targeted felon-disenfranchisement laws, but they are no longer on the books. Alexander Keyssar’s book The Right to Vote says that, outside the South, disenfranchisement laws “lacked socially distinct targets and generally were passed in a matter-of-fact fashion.” Even for the post–Civil War South, Keyssar has more recently written, in some states “felon disfranchisement provisions were first enacted [by] . . . Republican governments that supported black voting rights.” Section 2 of the Fourteenth Amendment itself acknowledges the legitimacy of felon disenfranchisement; its history is elaborated in a 2012 Yale Law Journal article.

If a disenfranchisement law had racist origins and was still on the books, it could be challenged in court and struck down (there is Supreme Court precedent — a unanimous 1985 opinion written by Justice Rehnquist).  But those challenges aren’t being brought, because they would be baseless.  There are good reasons for these statutes, starting with this question:  If you won’t follow the law, why should you have a role in making it?

You can read more about this issue in testimony I gave to Congress, here.

Don't Be Afraid To Give Kids Independence

When I started second grade at St. Mary's Elementary School in Albuquerque, my parents decided it was time I learned how to walk to school. The trek from my grandparents' house, where we lived in a small two-room adobe casita at the rear of the property, to the school a mile away took about a half-hour. I walked alone, down what passed for busy streets in those days, through neighborhoods and commercial areas, occasionally meeting classmates en route. It was good exercise and taught me independence at an early age.

It's lucky for my parents they weren't raising me in Montgomery County, Md., today, or they might be facing child neglect charges. That may be the fate of a Silver Spring, Md., couple.

Danielle and Alexander Meitiv allowed their 10-year-old son and 6-year-old daughter to walk home from a park a mile away on Dec. 20 and now find themselves the subject of an investigation by the county Child Protective Services agency. Police picked up their children midway on their short journey after someone reported seeing the two kids walking alone down a main thoroughfare in Silver Spring. When officers drove the children home, they confronted the father and read him the riot act about abductions and other dangers to which he was exposing his children, according to news reports.

But that was simply the beginning of the Meitivs' problems. A few hours later, CPS showed up on their doorstep demanding the father sign a safety pledge not to leave his children "unsupervised" for any period until the following Monday. If he didn't comply, CPS would remove the children from the home.

The Meitivs appear to be perfectly good parents, albeit with a belief that children should have freedom to explore their neighborhood without anxious adults hovering nearby. One parent is a climate science consultant; the other, a physicist at the National Institutes of Health.

"The world is actually even safer than when I was a child, and I just want to give them the same freedom and independence that I had -- basically an old-fashioned childhood," Mrs. Meitiv told The Washington Post. "I think it's absolutely critical for their development -- to learn responsibility, to experience the world, to gain confidence and competency."

But Maryland law says a child younger than 8 can't be left unsupervised by anyone under 13 years old -- at least not in dwellings, enclosures or vehicles. It's unclear whether allowing children to walk home from a park, or play in their own backyard for that matter, subjects parents to the same requirement that adults or older children supervise younger ones at all times.

Surely no one wants babies or small children left to fend for themselves at home or elsewhere for hours on end. But allowing one's own children to walk around their neighborhood, go to the park on their own, or even walk down to the grocery store or to a friend's house seems well within the bounds of responsible parenting.

Can bad things happen if children have such freedom? Sure. But the world is not nearly as dangerous as many anxious parents seem to believe. Abductions are extremely rare -- and can occur even if Mom or Dad is nearby.

According to a Department of Justice study of children who were abducted by someone other than a family member, only about 115 true stranger "kidnappings" occur in a year, and of these, most of the victims are teenagers. Children are far more likely to face harm from someone known to them -- sadly, most often from a parent or caretaker -- than a stranger.

Childhood is safer now than it has ever been. Yet we fret and worry about the likelihood that something horrible will happen if we allow children to explore their world and learn independence. Do we really want to raise a generation of wary, mistrustful kids who grow into fearful, neurotic adults? Growing up means learning to be independent, and parents who don't help their kids develop a sense of adventure and freedom are depriving them of the joy of childhood.

The Meitivs will face CPS investigators next week. Let's hope common sense prevails.

Iran Remains Our Biggest Threat

The agreement this week between the governments of Iraq and Iran to enter a formal relationship to fight the Islamic State group should be deeply troubling to the United States. The Islamic State, also known as ISIS, is a grave threat to the region and is responsible for the horrifying beheading of American journalists and an aid worker, as well as the brutal slaughter of countless innocent Muslims and Christians in Syria and Iraq. But as grave a threat as the Islamic State is, Iran is a much greater threat -- especially if it acquires nuclear weapons.

In November, the U.S. decided to extend nuclear talks with the Iranians, despite stalling on the part of the mullahs. The practical effect of the decision is to give the Iranians more time to make a bomb.

Lest anyone believe the sometime assurances of the Iranians that their desire to enrich uranium is purely for peaceful purposes, a news story on the United Nations' website in September raises suspicion. It says International Atomic Energy Agency Director General Yukiya "Amano noted (that) the Agency is not in a position to provide credible assurance about the absence of undeclared nuclear material and activities in Iran, and therefore to conclude that all nuclear material in Iran is in peaceful activities." That translates from diplomatic-speak into: We're not buying the Iranians' story.

A comprehensive study of Iran's nuclear programs was released in Brussels in November by the nongovernmental organization International Committee In Search of Justice, a group made up of current and former European parliamentarians and other experts. What the study shows is that Iran has a dual nuclear program -- a civilian side, which appears to pursue peaceful nuclear energy, and a military program, which skirts sanctions by obtaining dual-use nuclear materials or simply smuggling bomb-making materials into the country. Leadership for the civilian and military programs frequently overlaps, with scientists and others switching places between the two programs as needed.

Meanwhile, the Obama administration largely looks away, instead pursuing negotiations that will never persuade the Iranian regime to give up its nuclear weapons agenda. Part of the problem is that the administration doesn't want to take on the Islamic State directly in Iraq, preferring to provide American military advisers who will play a severely limited role while the Iranian Revolutionary Guard Corps actually provides thousands of troops on the ground.

But expediency in the fight against the Islamic State is a bad strategy for the U.S. and for the world. If -- more likely, when -- Iran develops nuclear weapons, those weapons not only will be used by Iran to intimidate its neighbors but also could well be put into the hands of terrorists whose reach extends far beyond the immediate region.

So what can and should be done? I asked Maryam Rajavi, the leader of the National Council of Resistance of Iran, to give her sense of what might actually persuade the Iranians to give up nuclear weapons. "They will only forgo the bomb if they sense that their survival is in danger and if they feel that the risk of insisting on the nuclear project outweighs the risk of abandoning it," she told me.

Rajavi talked about the mistakes the U.S. has made during the negotiations, giving the regime time to improve its ballistic missile programs, as well as enrich uranium. The regime, she said, "will dodge the signing of a comprehensive agreement as long as it possibly can, unless international pressure forces it to retreat."

Rajavi believes that the movement she leads is a direct threat to the mullahs. "In their confrontation against a decaying tyranny," she noted, "the Iranian people have a democratic alternative with a clear platform that seeks a secular and pluralistic republic, gender equality, a society based on respect for human rights and the abolition of the death penalty, abdication of the mullahs' Shariah laws, providing equal economic opportunities to all, a nonnuclear Iran, and peace and coexistence with the rest of the world."

Too bad the U.S. has been unwilling to recognize Rajavi's group, only taking it off the official terrorist list after the group challenged the designation in U.S. courts. Rajavi is no threat to the U.S., but she may just be the biggest challenge to the real threat we face in Iran.

Blackmailing Scalise

Some recent news items like this one report that liberal civil-rights groups are hoping to use Rep. Steve Scalise’s troubles to their advantage.  Their hope is that he can pressured to prove that he’s really not a racist by, among other things, promising to support the Left’s proposed legislation to resurrect Section 5 of the Voting Rights Act by overturning the Supreme Court’s decision in Shelby County v. Holder.

Rep. Scalise should tell the groups that he’s not interested, and in no uncertain terms. 

No new legislation is needed. The Supreme Court struck down only one provision in the Voting Rights Act, and there are plenty of other voting-rights laws available to ensure that the right to vote is not violated. What’s more, the bill that has been drafted is bad legislation.  For example, it does not protect all races equally from discrimination; it contains much that has nothing to do with the Supreme Court’s decision; and it itself violates the Constitution by prohibiting practices that are not actually racially discriminatory but only have racially disproportionate effects.  The bill has been extensively criticized on National Review Online and elsewhere:  See here and here and here and here and here and here.

And so, at Senate hearings last year, it was clear that no Republican would favor it, because it is designed to give a partisan advantage to the Left.  It would serve no purpose to hold hearings on the bill in the House.  The bill is dead, and it should stay dead.

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“Multiracial Marriage On the Rise”:  That’s the title of a short but compelling discussion on the Brookings website here.  It was brought to my attention by Washington, D.C.. lawyer Carissa Mulder, who asks, “How can racial preferences continue to be justified when more than 40% of Hispanics and Asians marry someone of a different race (usually white) and nearly 30% of new black marriages are to someone of a different race (usually white)?  Are we going to ask kids the races of their parents and penalize the ones who have a white parent?” 

Good questions, especially in the context of university admissions.  Also makes you wonder a bit about just how racist a country we can be, with all this fraternization going on.

One other thing:  That fraternization has been going on for a while.  According to this recent article in the New York Times:

On average, … people who identified as African-American had genes that were only 73.2 percent African. European genes accounted for 24 percent of their DNA, while .8 percent came from Native Americans.
Latinos, on the other hand, had genes that were on average 65.1 percent European, 18 percent Native American, and 6.2 percent African. The researchers found that European-Americans had genomes that were on average 98.6 percent European, .19 percent African, and .18 Native American.

These broad estimates masked wide variation among individuals. Based on their sample, the researchers estimated that over six million European-Americans have some African ancestry. As many as five million have genomes that are at least 1 percent Native American in origin. One in five African-Americans, too, has Native American roots.

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Speaking of sex, Attorney General Eric Holder has instructed the Department of Justice to take the position from now on that Title VII of the 1964 Civil Rights Act, which makes it illegal for employers to discriminate against individuals on the basis of their “sex” (among other things), thereby makes it illegal to discriminate on the basis of “gender identity, including transgender status.”  The memo acknowledges that “Congress may not have had such claims in mind when it enacted Title VII” — my nomination for understatement of the year — but that the “plain text” of the statute is best interpreted that way. 

The Justice Department acknowledges that it is switching sides (so to speak) on this issue.

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Misleading op-eds about affirmative action are, I know, as common as can be, but I thought I should end by noting this op-ed that the Washington Post recently, with the online title, “The misleading lawsuit accusing Harvard of bias against Asian Americans.”  Here’s what I wrote in reply:

It’s the op-ed here that is misleading, not the lawsuit. It admits that, yes, schools like Harvard and Vanderbilt do consider race in admissions, which means that, yes, they do discriminate. No one believes that schools should automatically admit students based on SAT scores, but that’s not what’s at issue here. Most Americans, Asian Americans included, oppose racial admissions discrimination, and there is no good reason for it. A school doesn’t have to have a politically correct racial and ethnic mix to teach students anything.  

And even if there were some benefit to such a mix, the costs overwhelm it. It is personally unfair, passes over better qualified students, and sets a disturbing legal, political, and moral precedent in allowing racial discrimination; it creates resentment; it stigmatizes the so-called beneficiaries in the eyes of their classmates, teachers, and themselves, as well as future employers, clients, and patients; it mismatches African Americans and Latinos with institutions, setting them up for failure; it fosters a victim mindset, removes the incentive for academic excellence, and encourages separatism; it compromises the academic mission of the university and lowers the overall academic quality of the student body; it creates pressure to discriminate in grading and graduation; it breeds hypocrisy within the school and encourages a scofflaw attitude among college officials; it papers over the real social problem of why so many African Americans and Latinos are academically uncompetitive; and it gets states and schools involved in unsavory activities like deciding which racial and ethnic minorities will be favored and which ones not, and how much blood is needed to establish group membership.

“It’s a Wonderful Country”: Happy New Year from the Center for Equal Opportunity!

Over the holidays, you may have had the chance to watch one of my favorite movies, It’s a Wonderful Life.  Over a decade ago, that movie, along with the endless drumbeat of anti-America nonsense we always hear in every season, prompted me to write this column for National Review Online.  I hope you enjoy it, and all the best from me and CEO.  Happy New Year!

It’s a Wonderful Country
A contemporary Christmas carol.

Well, Clarence, we've got another assignment for you, the most difficult since you earned your wings.

What's that, Joseph?

Very similar to your last one. Only this time it's a whole country involved, rather than just one man. It's the United States.

But it's such a good country!

Oh, I agree. But a lot of bad things are said about it nowadays and about its role in history — that it took land from the Indians, and allowed the enslavement of blacks, and mistreated many others, and that it ought to make up for all those wrongs and remedy everything it did bad in the past, and just generally be ashamed of itself. Many people are saying that the United States should stop trying to export its values and its way of life, and should go stand in the corner for a good long while. There are even a lot of Americans who feel that way.

But we don't expect a person to be perfect, let alone a country, and it's really not fair to ignore all the good that a people has done and focus only on the bad.

Exactly, Clarence, and that's where you come in. That was really very effective, what you did for George Bailey. So we'd like you to do the same thing for the United States. Show what the world would be like if there hadn't been a United States.

Gee, that's a tall order — and remember that I have the IQ of a rabbit. Could you give me some examples?

Sure. Let's start at the beginning, with the Indians. It's always struck me as odd that the redistributionists, of all people, purport to have no problem with leaving half the world in the hands of a relatively few Indians. Show what the world would look like if the settlers had not come to the America, but had stayed in Europe. It would be mighty crowded in Europe, and it's not clear how well the Indians would have gotten along without Western technology and medicine. More to the point, though, is all the good things — for the Indians and everyone else — that would never have happened without a United States. I'll get to that in a second.

The United States is still getting a lot of criticism for the fact that it allowed slavery for its first 75 years or so — in fact, that criticism has stepped up recently. But you might ask whether there would be less slavery now, and would it have ended sooner, if the West — including the United States, at the price of a bloody civil war — had not existed, and had not acted to ban it. Show a world with a thriving Middle Eastern and African slave trade.

Many people have pointed out that African Americans would be much worse off now if they were just Africans. Show the reparations people what their lives would be like in Africa now, assuming they would even have lives there. And how would Africa be getting along these days without Western medicine, including the advances that have taken place as a result of American researchers and doctors? Show an Africa with all the old diseases still there, and no hope of containing the new ones, like AIDS.

But let's not pick on Africa and the Indians. After all, the people who owe the most to America are the Europeans. You could show the United States — and our European friends — what their little peninsula would look like if the Nazis had won World War II. And you can show what Europe would look like if the Soviet Union had won the Cold War.

While you're at it, show our neighbors in the Middle East how Islam would be faring under the Nazis and Communists. It's true that the Islamists wouldn't have to worry about Jews — between the Nazis and Communists, there would be no Jews left in a world without the United States, and not many Christians either — but Hitler or Stalin would not have let a few religious fanatics stand in the way of all that oil. The world would be a harsher place for believers of all kinds, had the United States not been around to pioneer the separation of church and state and the free exercise of religion.

And don't forget the rest of Asia. Would those who denigrate America prefer an Asia and an Oceania that today would be part of a fascist Japanese empire? As for the America's opposition to the Communists there, it won't require much speculation on your part: Just show them what really happened in Cambodia under Pol Pot, and then multiply that a few times.

Oh, Joseph, this is so depressing.

To be sure, Clarence. So let's not focus just on the bad things that didn't happen because of the United States. Spend some time showing the good things that did happen because of the United States. Show them all the American inventions — the airplane, the telephone, the steamship, you name it. Show them all the people who have been fed by American food and who have been able to feed themselves using American agricultural technology. Show them the wonder drugs and advances in medical technology that America is responsible for, and the computers and the Internet and the cars, as well as showing them a moon never visited by humans. Show them the literature, the movies, the art, the television, and architecture, that America has given the world — and the music: Do show them a world without jazz, or rhythm and blues, or rock and roll.

Finally, show them a world without the Declaration of Independence, or Abraham Lincoln, or Martin Luther King. Show them a world without a nation that has always had at its core, not one race or one religion or one particular ethnicity, but an idea that is open to everyone. Show them a world that never had a powerful country embodying those ideals for the rest of the world to look toward and be influenced by.

Americans are the luckiest people in the word, Joseph, but the world is very lucky to have Americans.

That's right, Clarence, that's right.

Giving In to the Terrorists

It is easy enough for those in the media to recite the words "nous sommes Charlie Hebdo" in solidarity with the victims of Wednesday's terror attack on the editorial offices of a satirical magazine in Paris. But uttering slogans is cheap. In the wake of the killings, most major media in the U.S. have refused to show the cartoons that the terrorists claimed warranted the slaughter of 10 journalists and two police officers.

It is possible to see the cartoons online, if one goes to the trouble to search for them. And a few media outlets have published one or more. The Washington Post did so on Thursday -- and perhaps others will follow their lead in the days to come. But a host of media organizations have demurred, including CNN, the Associated Press, Fox News Channel and The New York Times.

The Charlie Hebdo cartoons in question range from somewhat benign drawings depicting Mohammed (which fundamentalist Muslims believe is forbidden) to more suggestive ones featuring the prophet and sexually explicit drawings of Muslim women.

Some are funny, like the cover on an issue that may have provoked the attack. An edition called "Charia Hebdo," a play on Sharia law, showed Mohammed promising readers 100 lashes if they don't die laughing after reading the issue (which the magazine proclaimed Mohammed himself edited).

But while those that seem over-the-top -- like one cartoon of a naked Muslim woman running down the street, her burqa hanging out her rear end -- may justify a warning before they're shown, they should hardly be censored by news organizations. To do so denies viewers important information. But it also plays into the hands of terrorists, who will be encouraged to kill again in order to achieve their ultimate aim.

It is not enough merely to describe the cartoons. A picture -- as the saying goes -- is worth a thousand words. To show even offensive material in a news article or TV report in order to better inform the public is not the same as endorsing the material. Failing to show the images leaves viewers in the dark --which is exactly what the terrorists want.

These images may offend the devout -- but no one forces those who might take offense to buy the magazine or look at the images reprinted in the newspaper or shown on TV. In secular society, whether in America or France, there is much to offend religious sensibilities. But when was the last time the editors and producers of mainstream media outlets let the religious beliefs of potential viewers dictate what could and could not be shown? Does The New York Times ban photos of same-sex couples?

The fact is, these media giants won't show the cartoons because they are afraid. They are afraid of becoming targets themselves. They are afraid of being accused of being anti-Muslim.

But giving in to fanatics is no way to ensure safety. The Islamists who killed 12 Parisians this week didn't just want to kill those individuals who had drawn or published images they hated. They want to kill freedom itself.

The attack on Charlie Hebdo is part of a larger war being waged throughout the world. Wherever radical Islamists are, they try to impose their ideology on others. Individual conscience is anathema to these extremists. Free will does not exist. Militant Islamists want nothing short of totalitarian control of all aspects of life -- for believers and non-believers alike.

They will kill, behead, rape, enslave, pillage and destroy everything and everyone who stands in their path, as they are doing throughout parts of the Middle East, South Asia and Africa.

As the late political scientist Samuel Huntington described in his book of the same title, we are in the midst of a "clash of civilizations." "The fault lines between civilizations will be the battle lines of the future," Huntington wrote more than 20 years ago. We are seeing it played out now.

When the media accept the rules dictated by the enemies of freedom, they are choosing sides in this clash. They are not Charlie Hebdo, but cowards.

Balancing the Old and the New

The week between Christmas and New Year's used to be one of my favorites. It was my end-of-year respite at work. I looked forward to quiet days in my office, with few phone calls, no visitors and a relaxed dress code. Time to clean my desk, pack up books I'd bought but never got around to reading (and never would) and throw out the stack of studies and policy papers that might have made good columns but had grown stale.

Not anymore.

The first change came a couple of decades ago, when I stopped going into an office -- other than the one a few feet from my bedroom. Now I look forward to dressing up, not dressing down. And as for carving out time to be alone, my bigger challenge is making sure I see colleagues more than a few times a year.

With the advent of the Internet, I never need to leave home to access information, research whatever topic strikes my fancy, peruse public policy, order books or even read the digital variety without getting up from my computer. I can conduct interviews or be interviewed via Skype or FaceTime, all without leaving home.

But this great freedom has also turned one hour, one day or one week into pretty much every other. No one I know shuts off his or her computer at the end of the day. We take our work with us wherever we go, answering emails and phone calls, checking the news at all hours. I take my iPhone to bed. It's often the last thing I look at before I close my eyes and the first thing I grab when I wake up.

The more connected I am, however, the less connected I feel. Sure, I can follow what friends and colleagues are doing via social media. But it's not the same as walking down the hallway to chat with a co-worker or grabbing a quick lunch together. Connecting face to face used to be effortless. Now it takes planning, coordination and lots of lead time, usually scheduled via email.

Electronic communication is convenient but impersonal. Emails are bad enough; texting is worse. Yet I find myself using both to communicate not just with associates and friends but family, too. It's quicker and more convenient to text a note from my phone than it is to place a call, which the recipient may be too busy to answer. But even a well-crafted email can't convey the same message as a phone call. And when it comes to communicating with those you love, a voice expresses a rich emotional range missing from a few hurried words flashing on a screen.

So this holiday interim, I'm going to try going back to my old routine. I'm not sure I'm brave enough to turn off my computer and iPhone altogether, but I'm going to limit their use. No looking at emails -- well, maybe once, OK, twice a day -- and no texting when a phone call would be better.

I may not have so much paper piled up on my desk as I used to -- but the end of the year seems a good time to scrap most of it and file the rest. As for books, I still prefer the ones you can hold in your hands. This year, instead of dispensing with those unread, I'll take the time I would have spent trolling online news to leaf through a chapter or two.

I also hope to schedule a few lunches and coffees with friends. And if I'm successful, I'm dressing up for the occasion. No jeans and sweater but a holiday outfit. I've got a closet full of clothes I wear only to formal meetings or on TV; why don't my friends deserve to see me looking my best?

Who knows, I may get used to this new pattern and carry it on into the new year. Come the end of 2015, my goal will be to have struck a better balance between the old ways and the new.