Center for Equal Opportunity

The nation’s only conservative think tank devoted to issues of race and ethnicity.

Mon12222014

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Confirmation of WHOSE Bias?

The Los Angeles Times had an op-ed last week that discussed “police shootings of young men of color” in terms of “confirmation bias.” Now, I’m prepared to believe that people tend to perceive ambiguous situations in ways that confirm their existing views, but that seems quite inapposite to, for example, the Michael Brown and Eric Garner cases. While one can criticize the police response in Mr. Garner’s case, no one misperceived what he was doing (and there were nonwhites among the police involved there as well as whites), and of course there is no doubt that Michael Brown was a criminal and that there is strong evidence that his being perceived as a threat was, to put it mildly, quite reasonable. 

No, the best example of “confirmation bias” in the headlines today is, instead, the willingness of the Left to swallow hook, line, and sinker the Rolling Stone campus-rape story, as Linda Chavez explains in her column last week.

Oh, and as long as I have the floor, let me link here to a piece I did for National Review Online in March 2008, right after then-presidential candidate Barack Obama gave his widely-praised speech in Philadelphia on race relations (prompted by criticism of the Reverend Jeremiah Wright, an unpaid campaign adviser and pastor at Obama’s Chicago church). My piece was entitled, “Want to Hear a REALLY Honest Speech about Race in America?,” and with all due modesty I think what it says on race relations in the United States remains true and is quite relevant in light of the ongoing Ferguson protests.

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You win some, you lose some:  A federal district court has ruled that the U.S. Equal Employment Opportunity Commission, which doesn’t like it when private employers balk at hiring people with criminal records, has to reveal its own internal policies in this area, which the agency had resisted. On the other hand, the Montgomery County, Md., public-school system has announced it wants to bring the racial makeup of its faculty in line with the racial makeup of its students (never mind the lack of any legal basis for this discrimination, as we have now pointed out to their lawyers), and the New York Fire Department has said that it’s going to jettison a physical test for probationary firefighters, perhaps because of its “disparate impact” against women.

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In Senate testimony last week, the head of the Leadership Conference on Civil and Human Rights lamented, “In one form or another, laws that disenfranchise individuals with felony convictions have existed in the United States since its founding. In fact, 29 states had such laws on the books at the time of the ratification of the Constitution.” 

Now, let me first note that it is useful to have another instance (there are plenty more) where a proponent of re-enfranchising felons concedes that these laws were on the books even when there was no conceivable racial motive for them (since it is often suggested that these laws are all rooted in the Jim Crow era). After all, blacks were generally not allowed to vote in ante bellum days anyhow — even in the North, let alone in the South — so there was no need to use felon-voting restrictions as an indirect means to keep them from voting.

But of course what is most eye-catching about the quote is its premise that there were more than 13 states at the time of the ratification of the Constitution. I was tempted not to ridicule the testimony for what may have been a typographical error, except (a) I’m not sure how a simple typo would explain this, and (b) if you google “states had such laws on the books at the time of the ratification” you’ll see that this language is taken verbatim from a formal report joined by a number of organizations in the Civil Rights Establishment and submitted to the United Nations, of all places, and that it has been quoted elsewhere and with approval.

So, I’ve decided to go ahead and ridicule all involved for their historical ignorance. 

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The Center for Equal Opportunity’s chairman, Linda Chavez, recently joined National Review’s Jay Nordlinger and columnist Mona Charen to “talk about Ferguson, the New York asphyxiation case, and our never ending race preoccupations in America.”  You can listen to the podcast here (Linda’s part makes up about the first half-hour).  

You can also see CEO quoted recently in the Washington Post here and the Daily Caller here

For the latter, I was discussing the Obama administration’s new guidelines on racial profiling.  I’m linking here to Senate testimony I gave in 2012 on this topic, making these basic points: “(1) care must be taken in defining the term “racial profiling”; (2) the amount of racial profiling that occurs is frequently exaggerated, and care must be taken in analyzing the data in this area; (3) with those caveats, racial profiling as I will define it is a bad policy and I oppose it, with (4) a possible exception in some antiterrorism contexts.”

Campus Hysteria

Rolling Stone magazine has now apologized, sort of, for publishing a lurid account of a gang rape at a fraternity at the University of Virginia that -- it has become increasingly clear -- never happened. But the larger story is why so many people -- editors, readers and university officials -- bought the story in the first place.

Within three days of publication of the fantastical account, which read more like third-rate pulp fiction than investigative journalism, the university president had suspended all Greek activities on campus. As with the Red Queen from "Alice's Adventures in Wonderland," it was "sentence first -- verdict afterwards."

UVA President Teresa Sullivan's statement may have struck some as reasonable: "The wrongs described in Rolling Stone are appalling and have caused all of us to reexamine our responsibility to this community." She might as well have shouted "Off with their heads!" regarding the unnamed members of Phi Kappa Psi accused of the crime.

The motives of everyone involved in this story are suspect. It is hard to know whether the alleged victim, identified in the story and subsequently as Jackie, deserves pity or investigation for slander. Although her friends and roommates claim that "something" happened to change the woman's personality during her first semester at UVA, it is hard to know whether she was mentally ill or had, indeed, experienced some sexual or other trauma. Whatever happened to her, she chose not to go to the police -- a wise choice, given the obvious inconsistencies and downright fabrications in the story she told Rolling Stone.

But Jackie's actions were only the beginning of the travesty. Why did Rolling Stone's editors accept a story that had not been thoroughly vetted, especially one that described horrific criminal activity? Why did the author of the story, Sabrina Rubin Erdely, accept her source's account without, at a minimum, seeking corroboration from others the source claimed she had told about the incident contemporaneously? Why would so many people believe that seven young men with high academic achievement and promise readily engaged in behavior that was brutal, disgusting and criminal -- behavior that could put them behind bars and destroy their futures?

Why? The gullible bought the story because it reinforced their worldview: that elite universities are bastions of patriarchy and white privilege; that fraternities exist to promote drunkenness, lechery and exclusion; and, most of all, that "rape culture" pervades campus life.

Even President Barack Obama has pushed the narrative about campus rape culture. Two months before the Rolling Stone article made it into print, the president held a White House event that decried campus sexual assault. The president repeated the oft-quoted statistic that "an estimated 1 in 5 women has been sexually assaulted during her college years -- 1 in 5. Of those assaults, only 12 percent are reported, and of those reported assaults, only a fraction of the offenders are punished."

But those figures are bogus. A new study released by the Department of Justice this week shows that women on college campuses are far less likely to be victims of sexual assault than their peers. The actual rate of sexual assault is a fraction of the president's figures: 6.1 assaults per 1,000 female college students, or 0.61 percent, not 20 percent.

None of this is to say that young women don't face a sexually confusing, sometimes dangerous environment on college campuses today. Campuses are hyper-sexualized. Orientation at many schools involves promoting guilt-free "safe-sex" exploration and experimentation. Sure, these indoctrination sessions include messages that "no means no," but the underlying ethic is one that promotes promiscuity and no-commitment sex.

But the answer to this hyper-sexuality isn't to invent a narrative that turns all male students into potential or actual rapists and all women into victims. By pushing the rape culture narrative, activists, irresponsible journalists and university administrators may actually undermine the credibility of genuine victims. Rape is a violent crime -- not a political metaphor to be used to promote an anti-male, anti-elitist agenda.

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!

Keeping Some Perspective on Ferguson

I hate to make light of a situation involving death, riots, and torched police cars, but one really has to laugh at the Left with regard to Ferguson. 

Bit by bit it became clearer and clearer that it was the conservative narrative that was more plausible:  a thuggish convenience-store robber who was assaulting a policeman, not a gentle giant cold-bloodedly gunned down by a racist cop. 

But of course an embarrassed apology was not forthcoming, and the Left plunged ahead with its insistence that Michael Brown’s death proved something or other and presented a great vehicle for the always-needed national conversation on race.  And so now, as another conservative notes, the claim is, “The prosecutor presented a case that was insufficiently biased” — and he’s quite right that, “if your argument comes down to a complaint that grand jurors were given ‘all the evidence,’ that’s pretty weak tea.” 

So that’s pretty funny.  And what is the Left’s prescription now, going forward?  Why, fewer parking and traffic tickets, of course!  That and racial quotas for police departments, in violation of the civil-rights laws and to ensure that we have less-qualified cops out there.  Just what we need.

Long-term, the Left’s perhaps most commonly proposed reform these days for neighborhoods like those in Ferguson is to make it easier to obtain and use illegal drugs there by decriminalizing them.  Now, reasonable people can disagree about the War on Drugs, but smoking more dope will, to make a dry understatement, do nothing to address the real social problems here:  first and foremost, the appalling out-of-wedlock birthrates, as well as dropout rates, poverty, and of course other crime.

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

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

As I say, it’s hard not to enjoy a good laugh.  One other bright note:  The Left’s bankruptcy here is so obvious that one hopes that anything it proposes will not get taken very seriously.  But of course it’s quite possible that there the joke may be on me.

The Eric Garner case is different, by the way, but that’s not to say that the policemen there had criminal intent either, let alone any racial intent; note also that his fellow policemen that day included at least a couple of nonwhites, and the grand jury itself was about half nonwhite, with that half including both blacks and Latinos.   So the policemen may have behaved wrongly, but not criminally or racially.  

Here’s hoping the crowds and critics act more responsibly than they have in Ferguson, and that the call to draw global racial conclusions from an ambiguous (at best) local tragedy is rejected.

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Readers may recall that one of Eric Holder’s many inglorious moments was his attempt to block Louisiana’s school-voucher program, on the grounds that it might somehow lead to less racial balance — and despite the fact that minority students were among the program’s principal beneficiaries. The mechanism that the Obama administration used here was an old desegregation order; there are, unfortunately, a lot of these old orders still out there, and they can be used for all kinds of politically correct mischief. 

The Supreme Court has made clear that, once a school system has been desegregated, control should be returned to the local authorities, who of course remain bound by the Fourteenth Amendment but who also ought to be able to try innovative school-assignment policies designed to help all children, regardless of race. Sadly, though, judges and litigants are too often enervated by inertia and do nothing.

Anyway, the Center for Equal Opportunity has for years been pushing for courts to revisit these old orders, and Jack Park had an excellent op-ed last week on this topic here, since the issue may be getting some much-deserved attention soon in Alabama.

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The College Fix has an interesting article about a debunking by two mathematicians of a “widely touted study [by Scott Page] claiming diversity is a better attribute than ability in spurring productivity and problem solving ….”  As to the math, I won’t say anything more on that angle of the matter, but I will quote this testimony I gave to the U.S. Equal Employment Opportunity Commission years ago:

Likewise, the title of Scott Page’s new book The Difference: How the Power of Diversity Creates Better Groups, Firms, Schools, and Societies might lead one to believe that it proves racial and ethnic diversity is good for business, but in fact its claims are more limited than that. Indeed, much of what Professor Page has to say is similar to part III of my April testimony— specifically, that for many jobs diversity of any sort is irrelevant; that in any event it is what he calls “cognitive” diversity that ultimately matters, not skin-color diversity per se; and that employers should “avoid lumping by [racial] identity” and should “avoid stereotypes” (and, of course, Professor Page does not address the legal prohibition on racial discrimination, even when it is said to be justified by believed “cognitive” differences).

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The always interesting Orlando Patterson had a piece in last week’s issue of The Chronicle of Higher Education, “How Sociologists Made Themselves Irrelevant.”  His basic thesis is that, after studies in the 1960s by Daniel Patrick Moynihan et al. were criticized for blaming the victim, “for several decades, sociologists have taken pains to distance themselves . . . from studies of the cultural dimensions of poverty, particularly black poverty.”  Professor Patterson laments this.  I’ll quote my two favorite paragraphs:

The great irony in that overreaction is that throughout that 40-year period of self-imposed censorship within the discipline, the vast majority of blacks, and especially black youth and those working on the front lines of poverty mitigation, have been firmly convinced that culture does matter—a lot. Black youth in particular have insisted that their habits, attitudes, beliefs, and values are what mainly explain their plight, even after fully taking account of racism and their disadvantaged neighborhood conditions. Yet sociologists insisted on patronizingly treating blacks in general, and especially black youth, as what Harold Garfinkel called “cultural dopes” by rejecting their own insistence that their culture mattered in any understanding of their plight.

And:

Black youth, and people generally, are not offended by attempts to change their values, habits, and even their modes of self-presentation if they are first persuaded that it is in their own interests to do so. Jackie Rivers and I learned this firsthand from our study of a group of inner-city youth, many with prison records, undergoing a demanding job-training program that aimed to alter those aspects of their cultural styles and attitudes toward work that made it hard for them to get or keep a job. None of them considered this a threat to their identities, as individuals or as black people.

Which brings us back to Ferguson, doesn’t it?

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.

Ferguson Vs. New York City

The grand jury system -- indeed, the criminal jury system overall -- is not perfect. And while I think the grand jury in Ferguson got it right by not indicting Officer Darren Wilson in the death of Michael Brown, based on the physical evidence and credible testimony from actual witnesses, the outcome of a grand jury in New York City this week in the death of Eric Garner is another matter.

The two cases are worlds apart in terms of the actions of the men who died and the officers who caused their deaths. Unfortunately, on both sides of the argument, proponents seem all too ready to adopt a narrative that fits their politics rather than examining the facts.

In Ferguson, the race hustlers and their enablers, from Al Sharpton to Eric Holder, turned an unfortunate confrontation that ended in the death of a black man into a cause celebre. Racism did not cause Brown's death. Nor was he the victim of a police execution, as thousands of protestors try to convince us with their "hands up, don't shoot" mantra.

We know from forensics and testimony by African-American witnesses that Brown reached into the police cruiser, sustained a gunshot wound, ran away, with Wilson in pursuit, but then turned back and moved toward Wilson, who shot him. Casings from the officer's bullets and the location of Brown's body when he sustained the fatal shot demonstrate that Wilson was moving backward in apparent retreat at the time of Brown's death.

What happened on the streets of Staten Island between Eric Garner and a group of police officers looks nothing like what happened in Ferguson. Moreover, we know what happened far more clearly because a bystander filmed much of the confrontation.

Those images make the grand jury's decision far less understandable. For all of the criticism of St. Louis County Prosecutor Robert McCulloch's decision to release the transcripts and evidence from the grand jury, at least we have some idea of what led to the decision not to indict. In the New York case, we don't have a clue.

What the video shows is a large black man arguing with police officers who are about to arrest him for the alleged resale of individual cigarettes. He is frustrated, angry even. He accuses the officers of harassing him -- he was arrested in an earlier incident on the same charge, the pettiest of offenses, a crime with no victims. But Garner is not a threat, although he resists arrest when a group of officers surround him, telling them not to touch him as he moves backward, not toward the police.

The video clearly shows Officer Daniel Pantaleo grabbing Garner from behind, with the officer's forearm pressed against Garner's neck, and wrestling him to the ground, the forearm against Garner's throat the whole time. I doubt that Pantaleo intended to kill Eric Garner, but that does not mean Pantaleo was blameless. The audio also demonstrates that Garner pleaded with what were by then several officers who held him on the ground, including one who pressed Garner's skull into the sidewalk. "I can't breathe," the asthmatic Garner begs over and over as a bevy of officers hold him down.

Police have difficult, dangerous jobs in which split-second decisions can have deadly consequences. But Eric Garner was no Michael Brown, and the officers who held down Garner -- including, but not limited to, Daniel Pantaleo -- had no reason to fear for their lives as Darren Wilson did.

To pretend that police never overreact or use excessive force is as wrong as to claim racism is usually to blame when a police officer kills a black or Latino suspect. Neither serves the public good.

In the case of Ferguson, the U.S. attorney general and an army of media quickly descended on the town in search of evidence of racism. But the facts didn't comport with their presumption.

It's unclear whether race played any role in what led to Eric Garner's death. At least one of the police officers in the video is black and another appears to be Asian. But racism is not the only motivation for police to sometimes exceed their authority, to use excessive force, even to behave brutally. Police power is an awesome force -- and one that requires reasonable restraint.

One does not have to be a bleeding-heart liberal to find fault with the grand jury's decision in New York City. The facts, not politics, should guide our reaction in both cases.

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.

“Let the Sunshine In”

“Let the Sunshine In” is not only the title of a song my fellow baby boomers will recall; it’s also the title of a short piece I did recently for Minding the Campus

In it, I urge the new Congress to pass a bill that requires federally-funded universities (a) to report whether they use racial preferences in admissions, and (b) if so, how those preferences comport with the Supreme Court’s constraints on them.  Let those who support racial preferences explain why they should be kept secret from taxpayers and why the federal government needn’t know if their use is consistent with federal law. 

As long as university officials take race and ethnicity into account in admissions decisions, a bill requiring publication of the use of such preferences is necessary. Such a bill would require universities that receive federal funding to report annually in detail on whether and how race, color, and national origin factor into the student admissions process.

Of course, the Supreme Court has, alas, upheld the use of race to achieve the “educational benefits of a more diverse student body” as constitutionally permissible, at least for now, subject to numerous restrictions.  But even if some insist that universities should continue to practice racial discrimination in admissions, there’s no justification for it being done secretly and without taking pains to satisfy the Supreme Court’s requirements. 

Senator Lamar Alexander (R-TN), who will likely chair the relevant Senate committee and is an outspoken critic of racial preferences, ought to be supportive.  The same is true of his House counterpart, Rep. Virginia Foxx (R-NC).

The U.S. Commission on Civil Rights endorsed this approach, including “sunshine” legislation, as a recommendation to the President and Congress in a 2006 report. Likewise, Rep. Steve King (R–IA) introduced similar legislation that would require universities that receive federal financial assistance to disclose data to the U.S. Department of Education on how race, color, and national origin factor into admissions decisions.  As Supreme Court Justice Louis D. Brandeis once said, sunshine is “the best of disinfectants.”

You can find a draft of the bill (the “Racial and Ethnic Preferences Disclosure Act of 2014″) and more discussion here.

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And speaking of Sen. Alexander:  He has been highly critical over the past week or two of the U.S. Equal Employment Opportunity Commission, and especially its dubious lawsuits during the Obama administration and lack of transparency. The Washington Times last week had an article that focuses, in particular, on a report that Sen. Alexander has released. The Senator has also put out a couple of press releases

Good for him!

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The superintendent of the Minneapolis public school system has announced that “black and brown” students, but not white students, will automatically have any proposed suspension reviewed. No word on red, yellow, or other colors. She wants a “25 percent reduction in disproportionality by the end of this school year; 50 percent by 2016; 75 percent by 2017; and 100 percent by 2018.” But no quotas, of course.

This is in response to pressure from the Obama administration for school districts to get their numbers right, racial-disparity-wise. This superintendent’s proposal is ridiculous, of course, but should come as no surprise, as it is the predictable (and predicted by the Center for Equal Opportunity) result of the administration’s “guidelines” in this area.

This sort of racial discrimination is blatantly illegal. What’s more, the children who will be hurt the most when badly behaving students are not disciplined will be their classmates — who are themselves likely to be “black or brown.”

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Judge Richard J. Leon of the U.S. District Court for the District of Columbia has struck downthe Obama administration’s “disparate impact” regulations for the Fair Housing Act, ruling that they are inconsistent with that statute. 

The issue whether disparate impact causes of action may be brought under the Fair Housing Act is also before the Supreme Court this term.  And so, as Judge Leon concludes, “Fortunately for us all . . . the Supreme Court is now perfectly positioned . . . to finally address this issue in the not-too-distant future.” 

This is an issue with which the Center for Equal Opportunity has been heavily involved over the years, by the way.  In the case now before the Supreme Court, for example, we joined and helped write two amicus briefs.

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.