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Colorado Bellwether

As Colorado goes Election Night, so goes the nation -- maybe. The Centennial State is clearly a barometer of Barack Obama's falling popularity. The man who began his meteoric rise as the Democratic presidential nominee in Denver's stadium in 2008 has lost much of his luster with Colorado voters and appears to be bringing down other Democrats with him. Polls show Republican Cory Gardner ahead by seven points in his race to unseat incumbent Democratic Sen. Mark Udall, and GOP gubernatorial candidate Bob Beauprez is neck and neck with sitting Gov. John HIckenlooper. But before Republicans pop the champagne corks, it is worth considering the big wild card in this election.

Like the rest of Colorado's roughly three million registered voters, I received my ballot in the mail about two weeks ago. This year will be the first that all Colorado voters received mail ballots, even without requesting them. The potential for thousands more voters to cast ballots in what is usually a low-turnout midterm election could easily confound pollsters and politicos. Conventional wisdom is that higher turnout favors Democrats -- and the odds of higher turnout helping Dems in Colorado seem somewhat greater given the demographics of the state.

Some 14 percent of eligible voters in Colorado are Hispanic. In 2012, Obama improved his share of support among Colorado Hispanic voters from 61 percent in 2008 to 75 percent in 2012. If mail ballots boost Hispanic voter participation by a few percentage points this year, it will likely redound to Democratic candidates' benefit. In a race as tight as the Colorado governor's race, Hispanic voters could well determine the outcome.

But demographics don't give the full picture. Since 2008, Democrats have benefited from a much stronger ground game that put operatives in the field to turn out their likely voters. The effort wasn't enough to stop populist tea party voters from boosting GOP fortunes in the 2010 congressional races, but Colorado was the exception. Democrat Michael Bennet won an open Senate race with just 30,000 more votes than his Republican opponent, Ken Buck. The question in 2014 is whether mail balloting helps or erases the Democrats' edge.

A New York Times analysis of Colorado mail ballots that had already been tallied 10 days out from the election seemed to give Republicans an advantage. Registered Republicans had mailed in ballots in higher numbers than Democrats, 42.8 percent to 32.3 percent. But those trends may not continue. It could be that more Republicans simply cast their ballots early, which is where the Democratic ground game will come in handy. Early voting makes it easier for "volunteers" -- many of them paid political and union operatives -- to go door to door to urge those who haven't voted to do so.

One other factor should give everyone who cares about democracy heartburn: the potential for voter fraud in Colorado's mail ballots. The ballot I received two weeks ago sat on my kitchen counter for days, as did my husband's. I finally cast mine, being careful to sign the back of the ballot envelope and put extra postage on it before putting it outside in my mailbox. But I have to admit, I worried afterward about whether it would actually make it to the elections office. It just didn't feel as secure as showing up at a polling place.

Who is to stop "volunteers" from showing up with dozens of mail ballots collected from elderly voters or others who may have been pressured by union reps or family members to cast their votes? Colorado will have regulations in place to limit the number of ballots a single individual can drop off at collection centers after 2015, but this year the possibility of ballot stuffing is real.

Colorado election officials claim that the signature on the ballot envelope is their way to detect phony ballots. But the system hardly seems foolproof, requiring signatures to be scanned and matched against a database that may prove more cumbersome than anticipated.

November 4 will be a test for Colorado -- and for the nation -- on this new experiment in democracy.

Lawsuits Wanted

Last week National Review Online published this column by me, titled “Lawsuits Wanted.”  It’s a review of some good lawsuits that have been filed in opposition to race-based decision-making — and some lawsuits that still need to be filed.

The fight for equal opportunity has seen some useful victories in recent years, but the opposition is tenacious and the struggle continues. Several important legal challenges to race-based decision-making are currently pending in federal courts — and a number of other good cases are still waiting to be brought.

Let’s start with what’s pending. One case, brought by Rothe Development, Inc., had a hearing in trial court yesterday. It challenges the federal Small Business Administration’s use of racial and ethnic preferences in government contracting.

A second case, accepted for review earlier this month by the Supreme Court, presents the question whether “disparate impact” causes of action may be brought under the Fair Housing Act. That particular case is out of Texas, where a nonprofit is suing the state’s Department of Housing and Community Affairs for alleged racial disproportions in the allocation of tax credits for building low-income housing. A similar lawsuit, specifically challenging the Obama administration’s regulations that embrace the disparate-impact approach, is pending in a District of Columbia federal trial court.

These are all excellent cases. There is no need to use racial preferences to ensure racial nondiscrimination in contracting; a more narrowly tailored approach is to require greater transparency in the publication of bidding opportunities and the awarding of contracts. And holding people liable for actions (like, say, refusing to rent to those with recent criminal records) that do not discriminate by race in their terms or in their intent cannot be squared with the text of the Fair Housing Act (which bans only racially discriminatory treatment) and will — perversely — not only discourage legitimate actions but encourage race-based ones.

The lawsuit in Fisher v. University of Texas also returned to the news over the summer. In 2013 the Supreme Court sent Fisher back to the appeals court for reconsideration, saying the lower court had applied the wrong standard in its decision. The university’s use of racial preferences was, alas, upheld in the latest appellate-panel decision, but a review by the full court of appeals has now been sought, and the case is likely headed back to the Supreme Court. Win or lose, though, it’s a good lawsuit — putting schools everywhere on notice that such discrimination is not to be undertaken lightly, highlighting the unpopularity of race-based admissions, and potentially ending or at least limiting the extent of this nonsense.

And there are other excellent cases waiting to be brought.

Consider, for example, Executive Order 11246, signed by Lyndon Johnson in 1965. The order’s affirmative-action regulations notoriously require “goals” and “timetables” for federal contractors if women and minorities are “underrepresented” in their workforces. It is quite clear from numerous Supreme Court decisions that the regulations’ use of racial and gender classifications will trigger judicial strict scrutiny; that mere statistical disparities are not sufficient to justify the use of such classifications; and that, even if they were, there is no justification for goals and timetables to be triggered when women and minorities are “underrepresented” but not when men and non-minorities are.

So these regulations are unconstitutional, as well as at odds with the nondiscrimination requirements of the 1964 Civil Rights Act’s Title VII (which bans employment discrimination) and its case law; yet the regulations remain in effect. An adversely affected employee or employer should sue.

Here’s another example: The federal government has promulgated many regulations under the Act’s Title VI that adopt a “disparate impact” approach for any program or activity that receives federal money. These regulations have recently been invoked, for instance, by the Obama administration in its claims that statistical disparities in school discipline (or anything else a school does) can amount to illegal racial discrimination.

But the Supreme Court has long held that Title VI itself bans only “disparate treatment.” That is, it bans actions that are motivated by race, but not actions that are innocently motivated and simply have a disproportionate racial effect. As the Court archly noted in a footnote in Alexander v. Sandoval (2001) (which decided a different question), “We cannot help observing . . . how strange it is to say that disparate-impact regulations” properly implement Title VI when the statute “permits the very behavior that the regulations forbid.”

Yet despite this invitation, no case has been presented to the Court to decide if these regulations are invalid. Getting rid of the federal government’s disparate-impact regulations under Title VI would end a lot of pressure to engage in race-based decision-making.

More ambitiously, lawsuits might be brought challenging the constitutionality of those statutes that do explicitly adopt a “disparate impact” approach, namely Title VII (which applies this approach to public and private employment decisions) and — to a lesser extent — Section 2 of the Voting Rights Act (which bans voting rules that have disparate “results”). Consider, in this regard, the New Haven firefighters case, Ricci v. DeStefano, which the Supreme Court decided in 2009.

The Court ruled there, quite correctly, that the city’s invocation of Title VII’s disparate-impact ban did not justify its decision to throw out the results of a firefighter exam because of its politically incorrect outcome. But the ruling was based on New Haven’s lack of sufficient evidence to meet the disparate-impact standards; it did not address whether the disparate-impact approach itself was legal. The Court thus dodged the fundamental question that Justice Scalia identified in his concurring opinion: “Title VII’s disparate-impact provisions place a racial thumb on the scales, often requiring employers . . . to make decisions based on . . . racial outcomes. That type of racial decisionmaking is . . . discriminatory.” He concluded that “the war between disparate impact and equal protection will be waged sooner or later.”

So, why not sooner . . . again, with a lawsuit by an adversely affected employer or employee?

Even if these statutes are not struck down, they should be construed as narrowly as possible to avoid constitutional problems — by, for example, courts’ giving greater weight to the employer’s or voting jurisdiction’s lack of racial motivation and to the legitimate and nondiscriminatory reasons behind the challenged practice.

Finally, something needs to be done about the fact that too many employers (universities being the worst) apparently believe that Title VII permits politically correct discrimination on the basis of race, ethnicity, and sex, so long as it is done in the name of “diversity.”

Employers today declare that they “celebrate diversity,” but their lawyers ought to know that the federal courts have never recognized a “diversity” rationale for employment discrimination under Title VII (university admissions are covered by a different law), and at least one (the U.S. Court of Appeals for the Third Circuit, in 1996) has rejected it. Nor are they likely to do so when, for example, the law’s text pointedly allows no business-related exception, no “bona fide occupational qualification,” for race.

The confusion is attributable in part to the Supreme Court’s unfortunate decisions upholding two affirmative-action programs, in United Steelworkers v. Weber (1979) and Johnson v. Santa Clara County Transportation Agency (1987), respectively.

But the Johnson decision made clear that preferences are to be used only “to attain a balanced workforce, not to maintain one” (emphasis in original), which is inconsistent with the diversity rationale. Thus, any employer using preferences must meet Weber’s remedial predicate and show a “manifest imbalance” in a “traditionally segregated” position. Fifty years after the 1964 Act made other employment discrimination illegal, there is not much “traditional segregation” left, especially for employers who have been celebrating diversity by discriminating in favor of “underrepresented” minorities.

Indeed, the Supreme Court’s decision in Ricci v. DeStefano suggests that an employer’s track record of discrimination against, say, Latinos must be so bad and so recent that, if it did not provide a preference, there is a “strong basis in evidence” that it could be successfully sued for that failure — a very high bar.

Moreover, Weber and Johnson held that preferences cannot “unnecessarily trammel” the interests of non-preferred employees. Today there will never be a situation where the “necessary” way to remedy discrimination is through more discrimination, rather than simply stopping discrimination. The Supreme Court’s opinion last year in Fisher v. University of Texas likewise stressed that racial preferences in university admissions may be used only as a last resort.

Properly construed, then, Weber and Johnson ought to have little force today, but we need lawsuits clarifying this, with the ultimate aim of a Supreme Court decision declaring that the cases are now obsolete – and thus ending the use of racial preferences in employment.

One last note: The whole premise of this article is that the judiciary will follow the law. And that underscores the importance of winning elections, so that responsible judges and justices will be appointed.

No One Trusts Us

It should come as no surprise that Turkey so far refuses to put boots on the ground to fight the ISIS takeover of Kobane, a beseiged Kurdish town across Turkey's border with Syria. While there is much to criticize about our erstwhile NATO ally's government, President Recep Tayyip Erdogan has clearly made a calculation that he can't trust the United States -- or more accurately, that he can't trust this administration. And why should he?

The level of confusion, incompetence and lack of will President Obama has demonstrated in dealing with the multiple crises that face us in the Middle East is mind numbing. He has ordered airstrikes against ISIS, too late and too few, but he has refused to allow the military to do its job well. Without Special Forces spotters on the ground, an air campaign cannot be entirely effective.

In a remarkable breach of protocol, Gen. Martin Dempsey, chairman of the Joint Chiefs of Staff, made it clear in congressional testimony in mid-September that we should not rule out the use of U.S. ground troops, despite the president's multiple declarations that no Americans would fight this war except from the air.

The administration is asking Turkish troops to fight ISIS alongside Kurds, their traditional foes, but is unwilling to commit our troops to stand with them? We have the best-trained, most experienced fighters in the world, but we won't allow them to battle a brutal army that not only is capturing wide swaths of territory in Iraq and Syria, but also has announced its aims to bring jihad to American soil?

What Obama has shown is a willingness to draw red lines and then allow them to be crossed, as he did in Syria. He's shown himself quite adept at squandering the blood and treasure spent in Iraq by withdrawing American troops precipitously, which virtually guaranteed the collapse of the country we are now witnessing.

The president's fecklessness on this has come under increased scrutiny in recent days with the publication of a memoir by former Secretary of Defense Leon Panetta, who lays bare Obama's false claim that he withdrew troops because Iraqi Prime Minister Nouri al-Maliki wouldn't agree to let them stay. The president chose to pull out all of our troops at once rather than personally pushing for a status of forces agreement that would have kept Iraq from coming apart at the seams.

Obama has put together a shaky coalition to fight ISIS, but without American leadership -- which means our willingness to use all of the resources at our disposal -- how can we possibly hope that others will do the job we are unwilling to do?

No one, at this point, is suggesting that the United States send in battalions of fighters, but it makes no sense that we tie the military's hands behind their backs by limiting ourselves to airstrikes without the proper U.S. intelligence on the ground to make them effective. Of course, there is always the danger that once we put Special Forces and military advisers on the ground, we'll end up needing to deploy more troops. But wars cannot be won by announcing to our enemies what we cannot or will not do -- or the day on which we will withdraw, regardless of the conditions on the ground, which is what Obama has done in Afghanistan.

When asked by Bill O'Reilly this week in his much discussed interview whether our enemies fear us, Panetta said, "I think they're getting a mixed message as to whether the United States will stand by its word."

It is not only our enemies who are getting mixed messages -- which is dangerous enough. It is also our allies. Under this president, America's word is becoming worth less and less. It is easy enough to point fingers at those who should take up the fight against Islamist extremism, not least those countries and governments that have helped foster it. But when the United States cannot be counted on to fully engage the struggle, no one else will fill the vacuum.

The Nonissue in This Campaign

One of the surprising and welcome shifts in the political landscape this election cycle is that high-profile Republican candidates, by and large, have not made opposition to immigration reform a major focus of their campaigns. With the exception of incumbent Sen. Pat Roberts in Kansas and challenger Scott Brown in New Hampshire, most GOP candidates haven't been beating the anti-illegal immigration drum to drive their base to the polls.

But even these notable exceptions suggest that immigration doesn't carry quite the punch it once did. Both Roberts and Brown invoked the specter of illegal immigration when they became desperate to turn around flailing campaigns -- a tactic Democratic challenger Alison Lundergan Grimes has also tried in Kentucky, claiming Minority Leader Mitch McConnell is pro-amnesty.

Why the difference in tone in this election?

First, it has little to do with wooing the Hispanic vote -- at least not this cycle. Colorado is the only competitive state this year where Hispanics are a significant portion of the electorate. But immigration as an issue has been a non-factor in what is a very tight race between incumbent Democrat Mark Udall and his GOP challenger, Rep. Cory Gardner.

The fact that immigration isn't the hot-button issue it was even two years ago is good news for both the Republican Party and the country. If Republicans actually win control of the Senate on Nov. 4, which seems increasingly likely, the lowered temperature will provide them the opportunity to tackle policy without risking their political fortunes. Whether they will seize the opportunity remains to be seen.

The good news is that of all the difficult issues facing the country, immigration is one that lends itself to solution and on which there is considerable consensus among Americans across the political spectrum.

By large margins, Americans support immigration reform that includes a pathway to citizenship for the 11 million illegal immigrants currently living here. Some 60 percent of Americans (including a majority of Republicans) favor a path to citizenship, with another 17 percent supporting legal status as an alternative. These numbers have remained constant over the past year, according to tracking polls by the Public Religion Research Institute.

But giving legal status to the 11 million people here illegally is only part of the solution. The bigger issue is enacting legal immigration reform -- and here the Republicans, if they're smart, should be able to fashion policies that would be good for the nation and their own political futures. PRRI's polling data show that a majority of Americans believe immigrants are good for the country. By nearly 20 points, more Americans (54 percent) believe immigrants "strengthen our country because of their hard work and talents" than that they "are a burden because they take our jobs, housing and health care" (35 percent).

Immigration is not going to go away as a policy challenge, even if it becomes less potent as a political issue. Immigration 2020, a gathering of some 200 business, religious and civic leaders who met in Washington this week under the auspices of the National Immigration Forum, focused on the importance of immigration to the future of America. Although the meeting drew participants across the political spectrum, there was broad agreement that any reform must encompass three principles: We must expand opportunities for everyone, foreign- and native-born alike, if we are to prosper as a nation. Improving immigrants' skills so that they contribute more to our economy will help all Americans thrive. Legal status helps ensure that those who are already here integrate fully into the American mainstream, building vibrant communities and healthy families.

If Republicans use these principles as building blocks to fashion an immigration policy for the future, they'll improve their own prospects with voters and also help the nation. Whether through discipline or geographic accident, the GOP has managed to avoid the minefield of immigration politics this time around. But 2016 won't be as easy, and the outcome of that election may well depend on how successful Republicans are in using their enhanced congressional numbers to pass meaningful immigration reform.

A Hidden Threat

It's easy to ignore, rarely making headlines or causing the average American lost sleep, but North Korea deserves our attention. This week, the U.S.-Korea Institute at Johns Hopkins University released a report showing satellite images of construction of what appears to be an intercontinental ballistic missile launch site. The facility was previously used to launch an orbiting space satellite, but images now show heavy construction at the site, which analysts believe are consistent with plans to launch an ICBM now in development.

The progress on North Korea's nuclear program is remarkable given the general state of deprivation in the nation. A famine devastated the country in the mid-1990s, and it never fully recovered. North Korea's 25 million people must still rely heavily on foreign assistance for basic food staples, mostly from China. One 2011 study of North Korea's energy consumption shows that the entire country consumes less energy than Washington, D.C., a point made famous by nighttime satellite photos that depict a black hole on the northern end of the Korean peninsula, while the prosperous south shines brightly.

Nonetheless, the government has marshaled the resources to build bombs. North Korea tested its first nuclear weapon in 2006, with subsequent tests in 2009 and 2013. And it has been hard at work developing delivery systems for its nuclear weapons. The same study that reveals work on a fixed launch site also describes continued work to enhance North Korea's mobile launching system, the KN-08, which operates from trucks. Although the study acknowledges that no one knows how successful North Korea will be in developing its systems, we shouldn't be complacent. North Korea is a threat to South Korea -- and to the nearly 30,000 American troops still stationed there -- but it is also a threat to the region and well beyond.

Last year, North Korea signed a cooperation pact with Iran, which Iran's Supreme Ayatollah Khamenei described as necessary because the "Islamic Republic of Iran and North Korea have common enemies since the arrogant powers can't bear independent governments." If launching nuclear-armed ICBMs at the United States may not yet be feasible, imagine a nuclear-armed Iran and North Korea challenging those "common enemies" by putting nuclear materials in the hands of terrorists. North Korea signed a similar pact with Syria in 2002, and the Assad regime developed a reactor that was nearly operational before the Israelis bombed it in 2007. And North Korea is currently the major supplier of missile components to Iran, whose own nuclear program proceeds apace while the Obama administration foolishly pursues an agreement with Tehran that is unlikely to stop it.

So what can the United States do about North Korea? It's a tough one. We have no direct influence, and the country's dynastic communist rulers have shown themselves remarkably good at keeping the nation the most isolated in the world. But while we don't have influence, China certainly does, as does Russia to a more limited extent.

Economic sanctions have had little impact on North Korea because China continues to come to the rescue. Prior to the collapse of the Soviet Union, the USSR propped up its communist ally by supplying most of the country's energy needs, but now China plays the major role, providing up to 90 percent of the country's energy imports. China also gives enormous food aid, though much of the food is funneled to the military. Food scarcity continues to be a major problem in North Korea. Malnutrition haunts the nation outside Pyongyang, a closed area where only members of the country's elite are allowed to live or even visit. Children are smaller than those throughout the rest of Asia, with the military having to lower its height requirements because North Koreans' growth has been stunted since the 1990s.

Meanwhile, North Korea's current leader, Kim Jong-un, continues the totalitarian path led by his grandfather, Kim Il-sung, and father, Kim Jong-il. Kim has recently disappeared from public sight -- a sometimes-ominous sign. His short tenure has been marked by internal power struggles and outward bombast. Kim ordered the execution of his chief rival, his uncle Jang Song-thaek, along with all of his uncle's family, according to some reports. But whoever heads the government, North Korea should remain on our radar as an imminent threat to peace and security.

The Dis-Invited

In this excellent letter to the trustees of Scripps College, National Association of Scholars president Peter Wood explains why the school was wrong to disinvite columnist George Will as the commencement speaker for its most recent graduation ceremony.  Antics like this college’s are, alas, more and more common — making Wood’s letter all the more welcome.

And speaking of Peter Wood and NAS:  I’ve written frequently in the past about their efforts to expose and critique the noxious political correctness at, especially, Bowdoin College.  In this work, they have a valuable ally in Center for Equal Opportunity board member Tom Klingenstein. 

For example, when Bowdoin College president Barry Mills announced his resignation recently, I speculated that NAS’s scathing report on the school might have played a role. The archly-worded first sentence in this statement by Bowdoin’s board of trustees later suggested that, indeed, Mills’s resignation was not entirely voluntary, since it applauds Mills for “his willingness to do what he thinks best for our College, even if it means stepping down from a job that he does so well and truly loves.”  Center for Equal Opportunity chairman Linda Chavez had a related column at about the time that Mills stepped down; you might also enjoy an earlier column she wrote about Bowdoin College.  You can also read in Wood’s essay here about how independent thinking is now discouraged in this grove of academe. (Of course, Bowdoin is not alone in its p.c. affliction:  You can read about how Western Washington University, to give just one recent example, suffers from it, too, here.) 

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“So you want to be a diversity officer”:  That’s the topic of this recent Inside Higher Ed article, and my posted suggestion is that, if we’re going to have these offices at all, the officer should have some knowledge of the civil-rights laws.  That’s precisely because so much of the diversity agenda (that is, the parts that involve treating student and faculty applicants differently on the basis of race, ethnicity, and sex) is inconsistent with the text of those laws.  I cite the ongoing Fisher v. University of Texas litigation and an earlier discussion I wrote about the problems with faculty discrimination in the name of diversity. 

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Is there sex discrimination in every single Ph.D. field? 

From last month’s Chronicle of Higher Education article headlined, “Report Examines Fields With Highest Gender Imbalances Among Ph.D.’s”:  “Among the 55 STEM-related fields, men were overrepresented in 74.5 percent and women were overrepresented in 25.5 percent. Among the other 80 fields, men were overrepresented in 77.5 percent and women were overrepresented in 22.5 percent.”  You do the math:  Every field is “over-“ or “under-represented.”

Why can’t academics get their “representation” just right, not over or under?  Of course, the real solution is to stop using the misleading terms “overrepresentation” and “underrepresentation” — as I argued some years ago here

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Turning from academia to the Obama administration:  Regarding employers’ use of, horrors, criminal background checks for prospective employees, “Do as we say and not as we do,” says the Equal Employment Opportunity Commission here. “In fact, don’t even ask what we do.” 

But you can’t really blame the EEOC for being a little sensitive these days.  It has suffered a series of embarrassing setbacks in court, the most recent example being in EEOC v. Port Authority of New York and New Jersey, where a federal court of appeals panel unanimously upheld the trial court’s dismissal of the commission’s Equal Pay Act lawsuit.  A few excerpts:

The district court concluded that the EEOC failed to allege sufficient facts to state a plausible claim that female and male attorneys at the Port Authority performed “equal work” despite receiving unequal pay. Because the EEOC did not allege any facts supporting a comparison between the attorneys’ actual job duties, thereby precluding a reasonable inference that the attorneys performed “equal work,” we AFFIRM. . . . [D]espite a threeyear investigation conducted with the Port Authority’s cooperation, the EEOC’s complaint and incorporated interrogatory responses rely almost entirely on broad generalizations drawn from job titles and divisions, and supplemented only by the unsupported assertion that all Port Authority nonsupervisory attorneys had the same job, to support its “substantially equal” work claim. As such, the EEOC’s complaint was rightly dismissed. … Simply put, the EEOC has not alleged a single nonconclusory fact supporting its assertion that the claimants’ and comparators’ jobs required “substantially equal” skill and effort. That the EEOC’s failure to include such factual allegations followed a threeyear investigation into the Port Authority’s pay practices – an investigation conducted with the Port Authority’s cooperation – is of some note. … Here, the EEOC had ready access to Port Authority documents and employees, including to the claimants asserting EPA violations, yet the EEOC failed – in fact, repeatedly rejected the need – to allege any factual basis for inferring that the attorneys at issue performed “substantially equal” work.

You get the idea. 

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President Obama’s recent speech at a Congressional Black Caucus gala is about what you would expect, victim-pander-wise. Here’s the worst paragraph:

Too many young men of color feel targeted by law enforcement, guilty of walking while black, or driving while black, judged by stereotypes that fuel fear and resentment and hopelessness. We know that, statistically, in everything from enforcing drug policy to applying the death penalty to pulling people over, there are significant racial disparities. That’s just the statistics.  One recent poll showed that the majority of Americans think the criminal justice system doesn’t treat people of all races equally. Think about that. That’s not just blacks, not just Latinos or Asians or Native Americans saying things may not be unfair. That’s most Americans.

Given the context and the audience, I don’t think the president meant to leave any doubt that these “feelings” are well-founded, those “statistics” are problematic only in that the truth is even worse, and that the poll likewise reflects reality. Yes, the ranks of the police and prosecutors and judges are just filled with racists, no doubt about it.

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Speaking of pandering:  In this speech to a forum for Minority- and Women-Owned Businesses (MWBEs) in Albany, Governor Andrew Cuomo announced this month that New York State would set a new goal of awarding 30 percent of state contracts to MWBEs – the “highest such goal in the nation.” 

As described, the program is almost certainly illegal: There is no effort whatsoever to tie these race- and sex-based goals to remedying contract discrimination — which is what the Constitution requires if you are going to have a program like this at all — let alone any justification for the 30 percent figure. None, that is, except for the fact that Governor Cuomo wanted to brag about how much money he will throw around, and wanted to announce a higher goal, and indeed wanted to declare a goal higher than that of any other state. And then he urged other states to follow New York, which of course would also be illegal. 

Here’s hoping someone sues.

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Finally, last week I participated in a Federalist Society teleforum that discussed racial preferences in government contracting, along the lines of the Andrew Cuomo matter discussed above.  You can listen to the teleforum here.

Nonexistent “Resegregation,” Phony Polls, and More

This month the Congressional Quarterly Researcher published this short piece I wrote for them on the (purported) “resegregation” of public schools in the United States:

No child today attends a segregated public school.  Not one.  “Segregation” means telling children they cannot attend the same school as children of a different color.  It does not mean a failure to have socially engineered racial balance.

It is true that there are educational disparities across racial lines, but racial imbalances in classrooms have little if anything to do with this.   Black children do not need a certain number of white children in a classroom in order to learn.

The real reasons that racial disparities exist are ignored by those who complain about “resegregation.”

When you think about it, a child’s environment has three major components — parents, schools, and peers — and in all three respects African American children face more hurdles.  They are more likely to grow up in single-parent homes, go to substandard schools, and have peers who are, to put it mildly, unsupportive of academic achievement.

But the Left is slow to acknowledge that out-of-wedlock births are a bad thing or that anti-“acting white” peer pressure exists.  They will admit that substandard schools are a problem, but resist (partly because of recalcitrant teacher unions) the most promising reforms:  competition among schools, merit pay for teachers, and more choice for parents and children.

The only way to bring schools into the politically correct racial-balance that the Left wants is not by ignoring students' skin color, but by using it to sort, assign, and bus them.  This is flatly inconsistent with Brown v. Board of Education, which prohibited race-based student assignments.

In addition, there is no increase in racial imbalance in schools.  In No Excuses: Closing the Racial Gap in Learning, Stephan and Abigail Thernstrom [she’s on the Center for Equal Opportunity’s board of directors, by the way] conclude that "minority students are not becoming more racially isolated; white students typically attend schools that are much more racially and ethnically diverse than 30 years ago, and the modest decline in the exposure of black and Hispanic children to whites is solely due to the declining share of white children in the school age population.”  And race is no proxy for disadvantage.

Nor is there any validity in the Left’s premise that more racial-balance means better education.  To quote the Thernstroms again: “The most sophisticated research on the subject does not find that having white classmates notably improves the academic achievement of blacks and Hispanics.”

So forget racial bean-counting and focus on improving our schools.

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For the first time in its history, the U.S. Equal Employment Opportunity Commission today has filed lawsuits that claim discrimination on the basis of transgender status violates Title VII of the 1964 Civil Rights Act, which prohibits employment discrimination on the basis of “sex,” among other things. The press releases are here and here.

I don’t think that this is sex discrimination within the meaning of Title VII; certainly the folks who passed Title VII in 1964 would have been surprised at this interpretation. ”Sex,” they would have said, means being male or female; it doesn’t mean changing from one to the other. But it will be interesting to see how the courts handle this issue.

And, in another report from our brave new world of progressive sex, the German Ethics Council has recommended abolishing laws against incest. 

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“An agenda-driven poll on affirmative action?”  That’s the headline the Los Angeles Times gave  my response to a recent op-ed it had published:

The premise of Karthick Ramakrishnan's Op-Ed article hinges on the positive response he received to one survey question: "Do you favor or oppose affirmative action programs designed to help blacks, women and other minorities get better jobs and education?" ("California needs to look again at Asian stance on affirmative action," Op-Ed, Sept. 25)

Now, was this objective or simply an attempt to get the result the professor wanted? A more objective question would be: "Do you believe there should be discrimination or preference on the basis of race, ethnicity or sex in deciding who is admitted to public universities, awarded public contracts and hired for state and local employment?"

That question would more fairly mirror the language in Proposition 209 that was at issue here. And, based on many other surveys, it would not have been likely to lead to the positive response that Ramakrishnan wanted.

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But let’s end on a somewhat lighter note.  By way of background, the Washington Post’s weekly “Style Invitational” is a contest in which readers compete to submit the funniest entry.  This week the winners were announced for the funniest (made up) course description from a college catalogue.  First-place was awarded to:  “PSYC 207: Welcome to Your College Nightmare. Participants will not be notified of their enrollment in this class until the morning of the final exam. Note: Class location is subject to weekly change without notice; each student will attend at least one class session in the nude.”

Very good, but what I wanted to note is the entry that won second place:  “SOC 101: Overcoming Prejudice. In this course, you will learn to identify and overcome the various prejudices — racism, sexism, classism, etc. — that all people like you have.”

Of course, the really funny (and sad) thing is that, while it might be described slightly (but only slightly) differently, my sense is that this is not at all an uncommon, let alone a fictional, offering.

Kudos to the Post, by the way, for its willingness to make a politically incorrect award, even if it was rather clueless in its apparent failure to see that too many academics and students won’t get the joke.

Ebola Fear Factor

It's time to take a deep breath. Ebola is an awful disease that has tragically infected a handful of Americans. Though it deserves the full attention of our medical community -- most importantly, the Centers for Disease Control and Prevention -- it should not be dominating our news, preoccupying our president and other political leaders, and frightening Americans into believing an epidemic on U.S. soil is just around the corner.

A Washington Post poll this week showed that two-thirds of Americans fear an epidemic in the U.S., and 4 in 10 said they are somewhat or very worried that a family member may contract the disease. This is simply not going to happen.

The disease can only spread through direct contact with the bodily fluids of an infected person. The Dallas hospital that treated Thomas Duncan botched procedures in dealing with the disease from day one -- but as terrible as those mistakes were, they do not portend disaster for the country.

At times like these, it is usually helpful for our leaders to try to calm the fear. But unfortunately, President Barack Obama has so squandered the trust of the American people over the past six years that the more he talks the less people seem to believe him. Nonetheless, he was right when he said, "The dangers of your contracting Ebola, the dangers of a serious outbreak, are extraordinarily low."

Our fears are irrational. Statistically, most of us have a far greater likelihood of dying of influenza this winter than Ebola. Last year, about 30,000 people died of the flu in the U.S., yet less than half of Americans get flu shots, which can prevent the disease. Getting struck by lightning is likelier than catching Ebola. So far this year, 24 people have died from lightning strikes in the U.S.; one has died from Ebola.

So why are we so afraid? Ironically, the very measures necessary to protect those in actual danger of contracting the disease frighten the rest of us. Photos of men and women covered in hazmat suits dominate the airwaves and front pages of newspapers.

The streets of Dallas outside the patients' apartments and the tarmac at the airport where patients are being transported look like scenes from a science fiction movie. Creatures in bright yellow scuttle about squirting disinfectant on sidewalks, their faces obscured by masks. A new patient hobbles from an ambulance to a medical transport plane looking as if she's just landed after a dangerous journey to outer space. And these images play in a constant loop on our living room TVs.

At one level, this phenomenon is nothing new. We saw it in the early days of the AIDS epidemic. We've seen it every time a new threat emerges -- swine flu, bird flu, SARS, MRSA, even mad cow disease. People fear what they cannot see and do not understand. But worse, the media's intense preoccupation with Ebola in the U.S. fuels fear. The attention focused on this story is simply disproportionate to its importance.

None of this is to suggest that the federal government's response has been exemplary. It hasn't. The CDC has sent inconsistent messages to health care workers and to the public. Its latest failure -- telling a nurse who had treated Duncan that she could travel aboard a commercial airline despite having a fever -- not only was wrong but also undermined the credibility of the agency. But it is highly unlikely that anyone on the plane is in real danger, even though the nurse has tested positive for Ebola. Unless there was contact with the woman's bodily fluids, transmission was highly improbable, if not impossible.

If we really want to protect ourselves from Ebola, our concentration should be focused on Africa. It is the geometric expansion of the disease in Liberia, Sierra Leone and Guinea that poses a real threat. We must stop the spread of the disease there. And that will require a greater effort on the part of the United States and other countries, including well-enforced quarantines and travel limits.

Regardless of what we do, it is likely we will see more cases of Ebola in American hospitals. The goal must be to provide the best treatment possible, to protect health workers who will come in contact with patients and to concentrate treatment in as few medical centers as possible.

The one thing the media could do to help is to quit treating Ebola as if it is the most important story of the day.

World Domination

What a difference a year makes. In September 2013, President Barack Obama bragged to the United Nations General Assembly in New York, "The world is more stable than it was five years ago." This week, the president again addressed the U.N. delegates, but claims that the world is somehow more stable thanks to his leadership were, understandably, missing.

It is difficult to know whether President Obama has finally learned his lesson or not. The man's hubris knows no bounds. Perhaps now he thinks he can vanquish Islamic extremism on his terms -- a few bombs here, a cruise missile there, a shipment of small arms to pro-Western fighters on the ground elsewhere.

But the battle to defeat the Islamic State will not be so easily won. Nor does eliminating one group ensure that others, even more dangerous, do not emerge. Indeed, the short, terrible history of the Islamic State (or ISIL or ISIS, as it is variously known) demonstrates exactly how these groups metastasize, with each mutation more deadly than the previous.

The U.S. may have killed Osama bin Laden, but the next generation of al-Qaida, the Khorasan Group, is busy plotting more attacks from bases in Syria. It is one thing for a great power to eliminate the leadership and annihilate the soldiers of an enemy army and quite another to defeat the ideology that inspires others to take their place.

And that is the problem the West faces. The struggles of the 20th century to defeat first Nazism and then communism in some respects pale in comparison with the challenge of the 21st century to defeat Islamist totalitarianism. As an ideology, communism ultimately collapsed of its own weight. Its utopian premise could not meet the test of reality. Communism promised heaven on earth but delivered scarcity and deprivation. Nonetheless, communist ideology advanced for seven decades, spreading suffering to many parts of Europe and Asia and, with more limited success, to Africa and Latin America before collapsing.

But radical Islamism faces no such earthly reality check. Radical religious ideologies are always more difficult than political or economic ideologies to prove false. Islamism promises not heaven on earth but a reward that will only be received after death. And who returns to report that there are no virgins awaiting the suicide bomber or beheader?

Fanatical religious sects are not restricted to Islam, of course. There are putatively Christian sects that preach violence and exert totalitarian control over their members -- Jim Jones' Peoples Temple and David Koresh's Branch Davidians, to name two of the most famous American examples.

But radical Islamism is no mere cult restricted in its scope and threat. Its aim is world domination -- much as communism's aspiration was. And opposing the threat of radical Islamism will require the same determination and proportionate commitment of resources as defeating communism did.

President Obama focused in his latest U.N. speech on the threats Islamism poses in Iraq and Syria, but these are just the tip of the spear. What about Yemen -- once the president's favorite success story in the fight against al-Qaida -- whose government has now been deposed by Iranian-backed rebel Houthis? Or Libya, where Majlis al-Shura and Ansar al-Sharia have crushed any hopes that the deposing of Moammar Gadhafi would bring freedom to the people? Or the myriad other places where security is threatened by such groups, from Algeria to Nigeria to Uganda to the Asian subcontinent? Even the country with the world's largest Muslim population, Indonesia, must now contend with the Islamic State. Can Saudi Arabia and other nations on the Arabian Peninsula be far behind?

And even these threats are not the Islamists' most dangerous. Iran, which the Obama administration shows no serious willingness to confront regarding its march toward building atomic weapons, looms larger than all the others combined.
President Obama's call to "dismantle the network of death" established by the Islamic State is not enough. Terrorism and death are simply the tools radical Islamism employs in its struggle for world domination. To misjudge its aims would cost us dearly.