Center for Equal Opportunity

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Two Lists – and Happy Thanksgiving!

This week’s email is brief — I know that this is a short work-week and a hectic time.  It contains two little lists. 

The first is drawn up, in part, with an eye on the Ferguson, Missouri, and looks ahead to the next part of the saga there.  The second is prompted by President Obama’s executive order on immigration last week.

The first list might be titled, “It’s Not That Complicated:  Race Relations in 400 Words and Five Easy Steps.”

  1. Keep things in perspective:  Race relations in our incredibly diverse nation in 2014 are good, and certainly never better.  Think of most countries in most eras, including the United States until quite recently.
  2. Remember that, to the extent that there’s a problem with inter-race relations in the United States, it is mostly about African Americans and racial disparities.  And that is a problem now fueled principally by culture, especially out-of-wedlock births.  Put another way:  If more than 7 out of 10 blacks weren’t being born out of wedlock, there very quickly would be even less to talk about, because we would quickly see greatly diminished racial disparities in poverty, crime, and so forth.  And those disparities are also more the cause than the effect of the (greatly diminished, socially condemned) racism that’s left.
  3. In an increasingly multiracial society, racial preferences — and any kind of race-based decisionmaking — are a bad idea.  The benefits are few, dubious, and marginal, while the costs are many, undeniable, and heavy:  They are unfair to individuals, divisive, stigmatizing, reinforce racial stereotypes, pass over the better qualified, set a dangerous precedent in allowing discrimination, hurt minorities by “mismatch,” encourage excuse-making, discourage responsibility-taking, and on and on.  This includes not only overt racial preferences but the use of the “disparate impact” approach to civil-rights enforcement, since it encourages race-based decisionmaking and, indeed, racial preferences in particular; perversely, that is, it encourages focus on color of skin rather than content of character.
  4. Note that the only reason for racial preferences that anyone really believes is a broadly remedial one — that is, as a way to make up for past discrimination.  But, as a legal matter, this is a nonstarter since it has long been rejected by the Supreme Court.  The law aside, race should be not be used as a proxy for disadvantage — nor, per the “diversity” rationale, for how people think.  Programs for the poor should be available for all the poor.
  5. Whatever their cause, the way to address the continuing disparities and discrimination is through nondiscrimination — and addressing out-of-wedlock birthrates and other cultural pathologies that affect African Americans disproportionately but by no means exclusively.  Addressing those cultural problems is the best — really, the only — way to diminish racism as well as racial disparities.  We should focus on character and standards for all, not the skin color and national origin of just some.

The second list, as I said, is prompted by the president’s executive order on immigration last week.  One way or another, our country is going to have many new people in it, and so both sides of the aisle should agree that we ought to give serious thought to assimilating them.  In fact, the president himself contained a nod to this reality in his actions last week, as you can read here.

So my second list might be titled, “Top-Ten List of What We Should Expect from Those Who Want To Become Americans (and from Those Who Are Already Americans, for That Matter).” The list was first published in a National Review Online column a decade-and-a-half ago, and later on I fleshed it out in this Congressional testimony.  Here it is:

1. Don’t disparage anyone else’s race or ethnicity.
2. Respect women.
3. Learn to speak English.
4. Be polite.
5. Don’t break the law.
6. Don’t have children out of wedlock.
7. Don’t demand anything because of your race or ethnicity.
8. Don’t view working and studying hard as “acting white.”
9. Don’t hold historical grudges.
10. Be proud of being an American.

When you think about it, how many problems would we have, with race relations or with immigration, if these rules were followed?

Happy Thanksgiving!

Big News on Racial Preferences

There have been two major developments in the past week in the fight against racial and ethnic preferences in university admissions, a fight in which the Center for Equal Opportunity has long played a leading role.

First, in Fisher v. University of Texas, the U.S. Court of Appeals for the Fifth Circuit denied further review of a panel decision that had rejected the challenge to that school’s use of racial and ethnic admission preferences. So we are probably headed back to the Supreme Court —  which is not a bad thing, not a bad thing at all.  CEO has written numerous briefs and other commentary on the case, and we will continue to do so.

Second, Harvard University and the University of North Carolina–Chapel Hill have been sued for racial discrimination in their student-admission policies, according to this press release, and more lawsuits against other schools are promised. 

These are extremely important developments.  For years, universities could engage in this kind of politically correct discrimination with great confidence that the chances of their being sued were small, since plaintiffs were so unlikely to materialize. This was especially true when, as now, the U.S. Department of Education has no interest in policing the use of racial preferences. With this new litigation strategy, those days appear to be over. 

Note that the Harvard lawsuit argues, in particular, that Asians have replaced Jews as a group for which a ceiling is set. It’s also explicit in asking for an end to racial preferences, not just an amelioration of them.

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Another area of longstanding interest for the Center for Equal Opportunity is our opposition to the use of race in political redistricting.  So we have also been involved in the Alabama redistricting case that was argued to the Supreme Court last week.  We helped write and joined an amicus brief in the case, participated in a moot court to help prepare Alabama’s solicitor general for the argument, and debated the approach the Court should take in this podcast recorded after the argument.

The political and legal issues involved in redistricting can be complicated, but the role for race is simple: It should not be considered.

In whatever opinion it writes in this case, the Court should make clear that Section 2 and Section 5 of the Voting Rights Act — and the Court’s own past jurisprudence — should not be interpreted in a way that encourages race-based decisionmaking. Some Republicans may want the VRA to require racial gerrymandering of one sort, and some Democrats may want it to require racial gerrymandering of another sort, but the Court should make clear that, no, the VRA should if at all possible not be interpreted to require racial gerrymandering of any sort.

As a matter of both constitutional and statutory law, the government should not consider race when it is drawing voting lines. It may not be irrational to use race as a proxy for commonality of interests on some issues, or voting behavior, but the Constitution sets a higher standard than that when the government uses racial classifications. There is no compelling reason for considering race, especially when weighed against the inherent costs of government race-based decisionmaking. And any interest the government has can be served by looking beyond race — that is, by not using race as a proxy — and looking to the underlying reason for individuals’ backgrounds and perspectives. The use of race will never be narrowly tailored. 

The costs of condoning race-based redistricting, by either party, are very high. It encourages racial essentialism, racial appeals, racial approaches to policymaking, and identity politics generally. Conversely, it discourages interracial coalition building and broader, nonracial appeals. It becomes more and more untenable as America becomes more and more multiracial and multiethnic. Instead of Queens, Brooklyn, the Bronx, Manhattan, and Staten Island, are we to draw the black borough, the white borough, the Asian borough, the Latin borough, and the Arab American/American Indian borough? Conversely, if normally a geographic entity with strong commonality of interests would not be divided, why should it be permissible to divide it because it happens to be racially homogeneous?

When redistricting officials are deciding when to zig and when to zag, that decision should not hinge on the skin color of the person who lives in the house.

The Court must bear in mind, too, that if gerrymandering is permitted to benefit this racial group, it must also be permitted to benefit that racial group – nothing else will work as a constitutional matter, and nothing else will work in a country where any group will be a minority somewhere. If it is permissible to gerrymander to ensure a particular outcome for blacks, then it must be permitted for whites; if it is permitted for Latinos, it must be permitted for Asians.  If we recognize commonality of interests for black people and are willing to accept and even encourage appeals to them as black people, then we must accept such appeals to Latinos and Asians — and whites.

The Center for Equal Opportunity’s Latest Greatest Hits

In addition to our speaking (on campuses, coordinating other conservative groups, and with a wide variety of media) and writing (in National Review Online and other magazines, newspapers, and publications), here are just a few highlights of CEO’s work this past year.  We continue to get unmatched bang for the buck — and, therefore, so do our donors!

Schuette v. BAMN – The full U.S. Court of Appeals for the Sixth Circuit had held that Michigan's Proposal 2 violates the U.S. Constitution's Equal Protection Clause. Proposal 2 was a ballot initiative that amended the state constitution to provide that state and local government agencies (including public universities) in Michigan "shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting."  CEO was involved in this case for a long time, first in the lower courts and then in the Supreme Court.  In fact, we helped get Proposal 2 passed in the first place, by releasing studies that documented how heavily racial and ethnic preferences were being used at Michigan public universities.  We joined and helped write numerous briefs — in the lower courts (twice), then urging the Court to take the case, and finally on the merits. We participated in a moot court for the State of Michigan counsel and provided comments on the state’s brief. And we won: The Court upheld Proposal 2.  Now we’re explaining how other states can follow suit.

Texas Department of Housing and Community Affairs v. Inclusive Communities Project (and Fighting “Disparate Impact” Generally) – Another Supreme Court case in which CEO has been involved this year presents the question whether “disparate impact” causes of action may be brought under the Fair Housing Act. The Court has recognized but never decided this important issue — that is, whether a policy that is neutral by its terms, in its intent, and in its application can still be illegally discriminatory because it has disproportionate racial effects (for example, suppose a landlord won’t rent to people with felony convictions for drug-dealing). We filed an amicus brief successfully urging the Supreme Court to take this case, are at work on a brief on the merits, and have been advising party counsel.  This is the third case and the third term in a row we have played a key role in such litigation. More generally, we have played a key role in bringing greater public visibility to abusive “disparate impact” lawsuits and regulations by the Obama administration. Papers here we suggested and co-wrote have recently been published by the Heritage Foundation and circulated to legislators and litigators.

Fisher v. University of Texas – This case challenging racial preferences in student admissions relied heavily on a legal theory we developed; we filed an amicus brief with the court of appeals and were the first to flag for media the opposing Obama administration brief there, advised and participated in a moot court for Fisher’s counsel, filed Supreme Court amicus briefs (at the cert stage and on the merits – highlighting CEO’s admissions studies), helped coordinate other amicus briefs, and did extensive speaking, writing, and “truth squad” work.  This year we have worked to ensure that the case is interpreted and applied in as favorable a way as possible, by writing and speaking about it, meeting with litigators and advocacy groups, critiquing the Obama administration’s “guidance,” and sending out a multiple FOIA requests to ensure that universities are meeting the criteria in Justice Kennedy's opinion.  Most recently, we joined and helped write an amicus brief urging en banc review by the Fifth Circuit, and advised party counsel on additional lawsuits (based in part on our studies).

Federal Register – We review this every day and file formal comments several times a week on proposed rules and regulations.  We have succeeded in removing racially preferential language in a wide variety of programs. 

Lawmaking (With and Without Congress) – Consistent with our nonprofit status, we continue to play a key role in publicizing objectionable legislation (in particular, this past year, post–Shelby County voting bills) — and, relatedly and more and more frequently, executive branch efforts to “legislate” without Congress.  For example, we recently helped publicize a letter from the conservative members of the U.S. Commission on Civil Rights to President Obama, regarding his efforts to declare by executive order that Native Hawaiians are an Indian tribe; the letter (and our own formal comments) pointed out the unconstitutionality of this measure, and that the reason the administration is pursuing this is because of Congress’s refusal to pass legislation in this area.

Contracting – We have sent memoranda this year to a wide variety of local governments, warning them not to use racial preferences; we are also advising various groups and attorneys regarding litigation in this area; and have urged Hill staff to commission a GAO study on the (legally dubious) use of such preferences.

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One of the organizations that CEO frequently works with is the National Association of Scholars, and it’s a pleasure to brag about its work, too.  Following up on my email last month regarding Peter Wood’s critique of Scripps College’s decision to disinvite George Will, here’s his letter to the college’s president on this matter.  As I said, antics like this college’s are, alas, more and more common — making Wood’s letters all the more welcome.  But Miami University has recently defied the gods of political correctness and allowed Mr. Will to speak there, and Peter has eloquently congratulated the school’s president for that.

Cynical Politics Drives President's Actions

President Obama is expected to act in the next few days to grant legal status to millions of illegal immigrants, fulfilling a promise he made before the election. Giving legal status to people who have lived and worked in the United States for a decade or more, paid taxes, kept out of trouble, contributed to their local economies, and raised children who are American citizens is the right and moral thing to do. But the right thing to do is not necessarily legal when it means bypassing Congress -- and Obama's decision has as much to do with politics as it does morality.

A majority of Americans favor legalizing undocumented immigrants who fit the profile described above, including a majority of Republicans in most polls taken on the issue over the past decade. Nonetheless, congressional efforts to pass legislation to accomplish this have been stymied by intense lobbying from anti-immigrant groups, with help from ratings-driven conservative media who rile up segments of the Republican base to make what is a nonissue for most voters into a major issue in some recent campaigns. It is a sad state of affairs, but it is one that cannot be fixed with a stroke of the president's pen.

In 1986, Congress passed the Immigration Reform and Control Act (IRCA), which granted amnesty to some three million illegal immigrants present in the U.S. as of January 1, 1982. The law also created a bureaucratic nightmare of government overreach in the hopes of stemming future flows of illegal immigration.

Instead of adopting sensible market-based measures to increase the number of persons admitted legally to the U.S. and to create legal avenues for needed workers to migrate here, the law penalized employers for hiring undocumented workers, which did nothing to slow illegal migration. Worse, it made all employers -- including individuals who hire someone to clean their home, babysit their children or cut their grass -- into quasi-enforcement agents who must verify legal status by inspecting birth certificates, driver's licenses, Social Security cards and other documents and maintain copies of the documents for years.

It's a terrible law -- and one that is routinely flouted by ordinary Americans and that creates intrusive federal interference in the employment process for businesses. Nonetheless, it remains the law of the land. The president may drag his feet on enforcing its provisions -- though Obama's record of deporting more illegal immigrants than any president in U.S. history suggests he's not as lax as his GOP critics suggest -- but he cannot willy-nilly rewrite it on his own.

The president knows this. He's stated so numerous times. "If, in fact, I could solve all these problems without passing laws in Congress, then I would do so. But we're also a nation of laws," he said in 2013. So why is he ignoring his own understanding of his constitutional powers now?

My bet is that he hopes to goad Republicans into the kind of nasty rhetoric that dominated the Republican primaries in 2012 in hopes they'll once again alienate Hispanic voters. The GOP did much better than expected with Hispanics who voted in the midterm elections, especially in state races. Texas Gov.-elect Greg Abbott won 43 percent of the Hispanic vote and Kansas Gov. Sam Brownback won 47 percent. If Republicans can do this well in 2016, the White House will be winnable. But if they start talking about deportation, even self-deportation as Mitt Romney did, their path to victory is much narrower.

The status quo -- 11 million persons living in the shadows -- is inhumane and unproductive and undermines the rule of law. Something must be done. Those who oppose legalization ought to be put to the test. Do they want to see 11 million men, women and children rounded up, put in detention and sent "home"?

Some might say yes, until they realized the devastating toll it would take in their own communities: houses and apartments suddenly vacant; cars and other consumer goods unsold; crops rotting in the fields; a hike in the cost of meat, fruit, vegetables and just about everything else; mothers who have to leave their jobs for want of someone to care for their children. The effect of eliminating 11 million people from our economy would be the equivalent of wiping out all of New York and Los Angeles.

But if the president is cynical, the Republicans have hardly shown themselves to be profiles in courage. The American people deserve better from both parties. The president shouldn't go it alone -- but the Republicans must step up and do the right thing by enacting legislation.

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.

Election Results and Intellectual Diversity

I won’t say a lot in this email about the election results, except that the new Congress will provide the Center for Equal Opportunity with some interesting and welcome chances to advance the cause of colorblind equal opportunity.  More on that in the weeks ahead.

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Meanwhile, I thought I would share with you my thoughts on “Intellectual Diversity – and the Practice of Law.”  The proponents of racial preferences think that skin color diversity is very important, but they are generally either indifferent to, or actually hostile toward, efforts to improve intellectual diversity — which is the only kind of diversity that really ought to matter at a university.  Indeed, all the evidence is that faculties, in particular, are left-wing echo chambers, with nary a conservative voice to be heard.

And so I was delighted when the Federalist Society asked me to speak on November 1 at a symposium it sponsored at Yale Law School that discussed “Achieving Intellectual Diversity” on law school faculties.  I appeared on one of the panels, and began by noting that I was a student there from 1977-1981 (with a year off to work for the Republican National Committee in 1980),  and that it was a good time to be in law school, in between the insanity of the sixties and early seventies, and before political correctness became so firmly entrenched.

But, I said, even then there were complaints that, with both Robert Bork and Ralph Winter on the faculty, there was “too much diversity” at Yale.

Here are the rest of my comments:

Intellectual diversity is valuable not because there are “many truths”; to the contrary, there is only one truth.  And we want to find the truth, and intellectual diversity is important in this context because we don’t know precisely beforehand what the truth will turn out to be and competition in the marketplace of ideas helps us find the truth (like the adversary system itself in law). To quote my favorite progressive reformer, Oliver Cromwell:  “My brethren, I pray you to consider that you may be wrong.”

Indeed, intellectual diversity is more important for the faculty than for the student body.  Let me describe briefly some ways that a faculty’s intellectual diversity might pay dividends in the practice of law.

In the first place, it may ensure that a student ends up in the right area of practice.  You may decide that you want to be a prosecutor rather than a public defender, if you hear about what each does.

Here’s another example of this:  When I was a student here, then-professor Robert Bork told me that, when he began law school, his ambition was to become a trusts and estates lawyer in Florida.  He wasn’t sure why.  But he was exposed to the study of “law and economics” at the University of Chicago, and had Edward Levi as his first professor, and so his career ended up going in a very different direction.

Now, I should acknowledge that there is a certain danger here:  You might decide that you don’t want to practice law at all.  After he finished lecturing his first-year Constitutional Law students on the Supreme Court’s jurisprudence for the Equal Protection Clause, Professor Bork confessed to his class what was a terrible realization to him, as a middle-aged man, namely that he had devoted his life to studying something that made no sense.  He urged us all to become dermatologists before it was too late.  The next semester, he urged his antitrust students all to become astronomers.  I’m not sure of the reason for the difference.

There’s a happy ending, though:  Antitrust law now does make sense, because the courts finally listened to Robert Bork.  Maybe someday they will for the Equal Protection Clause, too.

One other note about Robert Bork:  He team-taught a course in constitutional law here with Alexander Bickel.  What a wonderful course that must have been, and what a wonderful way to learn through the presentation of diverse viewpoints.  I would hope that more courses would be team-taught that way.

Once the student graduates, exposure to different professorial viewpoints will improve the way he or she practices law.  When you think about it, what you do as a lawyer is try to persuade people of one thing or another, and you will do a better job persuading people if you understand them.  You need to understand how the other side thinks, and how your clients think — and of course how the judge or justices think.

An example:  When I was in the Civil Rights Division at the Justice Department, we were going to file an amicus brief in a police brutality case that was before the Supreme Court.  The issue was whether you had to prove that the policeman acted with malice.  The liberal career lawyers in the Division wanted to use a “substantive due process” argument.  I pointed out to them that most of the justices did not really like the substantive due process approach, and that besides we had a straightforward textual argument — which those justices would like — that the Fourth Amendment says nothing about malice, but prohibits “unreasonable searches and seizures,” whether malicious or not.  So we argued the case that way, and we won.

Knowing about different viewpoints will also make you a better mentor, and will make you a better judge (or professor) if that’s where you end up.  You will do a better job at finding the truth.

Let me close with a couple of caveats. First, even if your faculty is totally left-wing and un-diverse, don’t despair.  The Federalist Society has on its website an excellent bibliography of conservative and libertarian books and law review articles that discuss other ways of looking at the law.  You can use these sources to push back against these professors, which is an important thing to do.  When you do that in class, you yourself will be providing some intellectual diversity for your classmates.

Second, of course it would be wrong to hire incompetent professors simply because they would provide more intellectual diversity.  But simple nondiscrimination will in all likelihood provide intellectual diversity, since (alas) better qualified conservatives are often not hired precisely because they are conservative.

Two addenda:  

(1) Several speakers at the symposium had already noted a just-published piece in The New Yorker re-explaining that social psychology academia is biased against hiring conservatives.  

(2) Another panelist, James Phillips, shared with me this comment that he received from a former chapter president of the American Constitution Society (the liberal counterpart to the Federalist Society) at Berkeley Law School (of all places):

Attending a law school that is not ideologically diverse substantially undermines the value of the education.  There are myriad divides in the law over very important issues that we as lawyers will face when we enter the legal field as professionals.  When we only bring up one side to caricature and deride it, a few things happen.  First, the very few students who are ideologically predisposed to those sides feel marginalized, thereby undermining their education.  More importantly, by treating those opinions as such, we are not seriously evaluating them and will be extremely ill-equipped to grapple with them in the real world.  I am liberal but hoped to be able to engage with conservative ideas in law school and have been deeply disappointed with the perfunctory and cavalier attitude with which we assess conservative ideas at my law school.  I think we will be much worse as practitioners, and ironically, will be much less capable of advocating for liberal ideas because of our failure to seriously grapple with conservatism in our law school climate.

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.

GOP Victory Was Easy, Now the Hard Part

The GOP victory Election Night was the easy part. Now comes the real work: forging an agenda that will solidify Republican gains over the next two years. Exit polls make clear that dissatisfaction with President Obama drove this election. As the president famously said in October, "I am not on the ballot this fall. ... But make no mistake: These policies are on the ballot. Every single one of them."

The president's words came true, but not quite in the way he intended. Come 2016, however, Republicans will have to run on what they've accomplished legislatively and what a different agenda a Republican would bring to the White House. But the electorate will be significantly broader than the one that went to the polls on Tuesday.

Only about 37 percent of eligible voters turned out this election, according to early analyses -- which redounded to the GOP's advantage. Democrats weren't able to energize their base. Black turnout was down, resulting in a 2 percent decline in their proportion of the overall vote compared to 2012, a presidential year, and 1 percent less than in 2010, another midterm election.

Hispanic turnout was down, as well. Despite gains in population, Hispanics made up only 8 percent of voters in 2014 compared to 10 percent in 2012. Single women represented 2 percent fewer voters than in 2012. As a result, whites, especially white males, who overwhelmingly vote Republican, had greater impact on the final results. Republican candidates received a whopping 64 percent of white male votes in 2014.

Republicans can't count on Democrats' apathy next time out. But the results in this year's returns point to some opportunities for the GOP to expand support among traditionally Democratic groups -- provided the party doesn't blow it with a legislative agenda that rekindles disaffection.

The two groups who are most critical to winning the White House and retaining control of Congress are women and Hispanics. If the GOP alienates these groups, their path to victory will be virtually nonexistent.

Republicans did better among women overall this time than in 2012, but not quite as well as they did in 2010, when dissatisfaction with Obamacare drove a GOP takeover of the House. In 2010, GOP candidates overall won 51 percent of the female vote, which slipped to 47 percent in 2014. Congressional Republicans will have to keep women in the fold in 2016, which will depend on looking like leaders not obstructionists.

Among Hispanics, too, the GOP did much better than in 2012, winning more than a third of Hispanic votes nationwide, compared to only 27 percent in 2012. The key may well be that, for the most part, Republican candidates didn't shoot themselves in the foot with nasty rhetoric as Republican presidential hopefuls did in 2012. Mitt Romney's invitation for illegal immigrants to self-deport turned off many Hispanic voters, who viewed the proposal as not only unrealistic, but also cruel, dividing families and devastating immigrant communities.

In Colorado, for example, U.S. Sen.-elect Cory Gardner largely stayed away from illegal immigrant bashing, and it paid off. Exit poll data analyzed by The Wall Street Journal showed Republicans doing much better than they did in the 2010 midterms in counties where Hispanic voters make up more than 20 percent of the vote. Gardner did better in 20 of the 21 heavily Hispanic counties than the 2010 GOP Senate candidate did.

A critical test for Republicans may come before they assume actual leadership of the Senate in January. The president has promised executive action before the end of the year to give legal status to as many as half of the 11 million illegal immigrants present in the U.S. now. Doing so will infuriate many in the GOP and could prove a Pyrrhic victory even for illegal immigrants. If the president acts unilaterally, he will invite a legal challenge to his authority and virtually guarantee that the new GOP Congress will try to cut off funds for implementation of his executive order when they return in January.

But Republicans would be smart not to overreact. They should, instead, move their own immigration bills forward, expanding the number of legal immigrants admitted and creating a temporary worker program that could accommodate some of those undocumented workers already doing jobs Americans won't take. How they handle this tough situation could open an easier path to the White House in 2016 -- or derail the stunning victory they achieved this week.

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.