Center for Equal Opportunity

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The Future for Republicans

Senate Republicans breathed a big sigh of relief Tuesday night when Roy Moore went down to defeat in the Alabama special election -- even though it halved their already razor-thin majority. Alabama voters rejected a man who was totally unfit to serve as U.S. senator, not just because of numerous allegations that he preyed on young girls when he was a local district attorney in his 30s but because his reverence for the Constitution was as phony as his 10-gallon hat.

But the race might have turned out differently had it not been for the courage of my home state's junior senator, Colorado's Cory Gardner, who announced that the National Republican Senate Committee, which he leads, was pulling its financial support after The Washington Post printed stories detailing Moore's alleged abuse. The Senate Leadership Fund, run by former members of Majority Leader Mitch McConnell's staff, followed suit, drying up funds for the Moore campaign and signaling to donors that contributing to Moore was toxic. The Republican National Committee briefly froze its joint fundraising efforts on Moore's behalf but jumped back aboard the Moore train after President Donald Trump, eight days before the election, tweeted, "We need Republican Roy Moore to win." Once Moore lost the race, however, Trump pretended he was never in Moore's camp, reminding everyone he had supported Moore's runoff opponent in the GOP primary, Luther Strange, because Moore wouldn't "be able!
to win the General Election."

Money can't always win an election with a bad candidate, but had the NRSC and other Republican political action committees poured the $5 million they could have into the race during the last weeks of the election, Moore might have squeaked through. Despite the serious and credible allegations against him, Moore still only lost the vote by 1.5 percentage points. White women overwhelmingly voted for Moore -- 63 percent, according to exit polls -- including a slim majority of college-educated white women. But as surprising -- shocking, given the allegations against Moore -- as those numbers might be, they reflect lower support than Republican candidates usually garner in Alabama. Had Moore done as well among all white voters as Republicans in previous elections, he'd be riding his horse up to the Capitol, which is why the decision by Sen. Gardner and other Republicans who put country before party mattered.

Gardner wasn't alone among courageous Republicans. The senior senator from Alabama, Richard Shelby, announced just two days before the election that he had cast his absentee ballot for a write-in candidate because he couldn't vote for Moore. Sens. John Boozman of Arkansas, Bill Cassidy of Louisiana, Susan Collins of Maine, Bob Corker of Tennessee, Steve Daines of Montana, Jeff Flake of Arizona, Lindsey Graham of South Carolina, Dean Heller of Nevada, Mike Lee of Utah, John McCain of Arizona, Ben Sasse of Nebraska and Pat Toomey of Pennsylvania joined Gardner and Shelby in unequivocally coming out against Moore. Other Republicans said the allegations -- if true -- were disqualifying but fell short of saying that voters should reject Moore outright.

This was an important test in the era of Trump. The president is the leader of his party, but Gardner and others showed that they can make their own decisions based on the evidence and their convictions. For years, the GOP has presented itself as the values party. But with Trump's election, many in the party have been put in a bind. Trump's history -- including allegations of his groping and demeaning women, not to mention his own words on tape that he could "grab them by the (genitals)" -- has cast doubt on whether the Republican Party represents family values anymore. Maybe the courage of Republican senators who rejected Moore's candidacy will usher in a new commitment to character in the party.

Gardner represents the future of the Republican Party, not its past. If Republicans are to have any hope of winning young voters, women (outside of whites in the Deep South) and larger shares of Hispanics and blacks, it needs to turn its back on the Roy Moores of the party and follow the leadership of the Cory Gardners.

Center for Equal Opportunity at the Heritage Foundation

On Thursday this week, December 14, Center for Equal Opportunity research fellow Althea Nagai, along with CEO president and general counsel Roger Clegg (that’s me) and the Manhattan Institute’s Heather Mac Donald, will appear on a panel at the Heritage Foundation.  The occasion is the publication of a new paper by Dr. Nagai on the topic of “unconscious bias.”  The panel discussion is on “Why Claims of Unconscious Racism Fall Flat: Debunking the Implicit Association Test.”

To elaborate:  Psychologists have developed a test that purports to uncover unconscious racism. Supposedly tapping into the subconscious, the Implicit Association Test (IAT) measures disparities in millisecond response times on a computer.  This test, and claims of widespread unconscious racism generally, have of course become commonplace on the Left in recent years.

While it has been hailed as “proof” of deeply seeded racism in American society, policymakers should consider the growing body of research suggesting the test cannot predict real-world behavior before enacting policies to counterbalance so-called unconscious bias. Academia, police departments, and corporate America are seeking to root out unconscious racism, and the IAT has started popping up in employment discrimination lawsuits.

So join us, in person or on the Internet, for a discussion with the panel in looking at problems with the IAT and why policymakers and employers should think twice before embracing these dubious claims of racism.  Here’s a link where you can RSVP or livestream the event.

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“Disparate Impact” in the News – The two worst ways the civil-rights laws have been twisted over the years are: (1) allowing, and even requiring, politically correct preferential treatment on the basis of race, ethnicity, and sex (even though such discrimination is actually prohibited by the texts of the relevant laws); and (2) prohibiting actions that are not actually discrimination at all, but the neutral application of neutrally defined and neutrally intended standards that happen to have a statistically disproportionate result (this is also commonly done without a statutory basis).

On the first point, the Trump administration appears to be off to a good start, with its aggressive investigation of “affirmative action” in student admissions to Harvard. Like many selective schools, Harvard gives racial preferences to African Americans and Latinos over whites and Asian Americans. What’s more, the Justice Department this week filed a brief opposing a politically correct but racially exclusive election in Guam.

And there are good signs now on the second point, too. This “disparate impact” approach to civil-rights enforcement was much beloved by the Obama administration, but recent news stories suggest that the Trump administration may be rethinking it, in the context of school discipline and home insurance in particular. Threatening to sue people if they don’t get their numbers right is just another way to create pressure for racial quotas. Recommended reading on the topic by yours truly can be found here and here.

Really, when you think about it, the way forward from identity politics is to stop race-based decision-making of any kind. We’re all Americans, E pluribus unum, and all that. And this means no more racial preferences or “disparate impact” civil-rights enforcement.

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The Royal Box – Royal-to-be   Meghan Markle has gotten a positive reaction to this video she posted that discusses her biracial background. The climax comes when as a student she is confronted with a form that requires her to choose between checking “black” or “white,” and she decides to do neither. That night, her father vindicates her refusal to pick one or the other, telling her from now on to “draw [her] own box.”

I like that, too. And the problem isn’t that there aren’t enough boxes to choose from, but that we are asked to check these boxes at all, on college applications, employment forms, you name it. We should each have our own box, each labeled “American” — which is to say that we need no boxes at all.

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Finally, I thought I’d share with you this letter we sent to the relevant U.S. Senate Committee regarding the nomination of Kenneth Marcus, a long-time friend of CEO and the nominee to head the Education Department’s very important Office for Civil Rights:
Senator Lamar Alexander
Senator Patty Murray
Senate Committee on Health, Education, Labor and Pensions

December 1, 2017

Dear Senators Alexander and Murray,

I am writing on behalf of the Center for Equal Opportunity to express our unqualified support for the nomination of Kenneth L. Marcus to be Assistant Secretary for Civil Rights at the U.S. Department of Education.  The Center for Equal Opportunity is a nonprofit, nonpartisan research and educational organization that focuses on issues involving race and ethnicity, including civil-rights enforcement.

It is hard to imagine how anyone could be better qualified than Ken Marcus to be the Assistant Secretary for Civil Rights at the Education Department.  Begin with the obvious fact that Mr. Marcus has already held that position in the acting capacity during the George W. Bush administration and did an outstanding job.  He has also served elsewhere in the government in civil-rights positions, at the Department of Housing and Urban Development and as staff director of the U.S. Commission on Civil Rights. 
He was a lawyer in private practice and is a thoughtful scholar as well, teaching at the City University of New York's Baruch College School of Public Affairs, and authoring two books (one published by Oxford University Press and the other by Cambridge University Press). 

And he founded and currently heads the Louis D. Brandeis Center for Center for Human Rights under Law, which is devoted to fighting anti-Semitism and other prejudice on our college campuses. 
He is an outstanding choice to enforce the civil rights of all individuals in the nation's educational system.

On a personal note, I have worked with Ken on civil-rights issues continually since 2001.  I have never met anyone more serious, reflective, judicious, fair-minded,  and even-handed than Ken, in addition to no one with a better grasp of the civil-rights issues that he will face in his new job.

Thank you very much for your consideration of our views.

Roger Clegg
President and General Counsel
Center for Equal Opportunity

Happy Thanksgiving from the Center for Equal Opportunity!

Happy Thanksgiving, CEO supporter! 

One of the things we’re most thankful for here at the Center for Equal Opportunity is the kind and constant letters, phone calls, and emails we receive from all over this great country, supporting us in our work.
Here’s an example:  We were recently contacted by a resident of Erie, Pennsylvania, who reached out to us because she remembered that we frequently challenge on a national basis the politically correct narrative that blames all racial disparities on racial discrimination.  I’m including her email to us below – it’s very well done, and she makes many of the points that CEO likes to make.  Great minds think alike:

Dear Roger,

I was very disappointed to read the article in USA Today which noted, "Lower incomes, educational attainment, and homeownership among black Americans, as well as higher poverty, unemployment, incarceration, and mortality all contribute to racial inequality in the United States.  In some of America's metro areas, discriminatory policy, racial bias, and a history of oppression have deepened such inequalities and widened the gap between black and white residents in a variety of socioeconomic measures.”  The article goes on to list the 5 worst cities for blacks in these areas, and my city, Erie, Pa. is #1.

The article does not mention the one major contributing factor that is directly related to these social disparities and that is the fact that nearly half (48.9%) of Erie County live births were to unmarried mothers. The percentages listed by statistics on  are 43.6% for whites, 83.3% for blacks, and 70.2% Hispanic, and the staggering fact  from our own US Census Bureau is that marriage drops the probability of child poverty by 80%. Weak family structure not only accounts for rates of poverty, but many other disparities. The data from the Fatherhood Initiative and the Heritage Foundation show children raised in single-parent households are more likely to have emotional and behavioral problems, more likely to be physically abused, smoke, drink alcohol and use drugs, be aggressive and engage in violent delinquent and criminal behavior, have poor school performance, and be expelled from school or drop out from school. 

According to Dr. Walter Williams,  … blacks must confront the sad reality that if we conclude that racial discrimination is the major cause of black problems, when it isn't, the effective solutions will be elusive forever.  He points out that the Census Bureau pegs the poverty rate among blacks at 35%, but that the poverty rate among intact black families is only 8%!  He also points out that sadly each year, roughly 7,000 blacks are murdered, and 94% of the time, the murderer is another black person. He states that although blacks account for 13% of the nation's population, they account for more than 50% of homicide victims — why aren't we seeing national outrage from these statistics when it comes to Black Lives Matter?

Instead of just stating that black disparities exist in so many areas, when do we begin to shape policies in local, state, and federal governments to reward personal responsibility for committing to raising children?  Surely black and white leaders can come together to insist on change in policy like tax benefits for married households, funding directives in school to encourage youth not to engage in uncommitted sexual choices, and giving minority children access to charter/Catholic and other private school settings for improved school outcomes, which will yield better jobs and income. 

Erie has been my family home for over 20 years, and I wish we could gather community leaders to see what other measures we could implement to improve these sad statistics.

Well said, ma’am!

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The Federalist Society’s Regulatory Transparency Project – The Center for Equal Opportunity is also thankful for the opportunities we have to team up with other fine organizations to work on issues of common interest. 

In the regard, I’ve written before about the Federalist Society’s Regulatory Transparency Project (RTP), but this is a good week to do so again:  The former’s annual convention was held last week and, since the meeting’s theme this year was

“Administrative Agencies and the Regulatory State,” much work of the latter was showcased directly or indirectly.

The basic idea of the RTP, which began about a year-and-a-half ago, is to foster a nationwide conversation about areas where the costs of regulation exceed any benefits. The RTP consists of twelve working groups — Antitrust & Consumer Protection, Cyber & Privacy, Energy & Environment, Enforcement & Agency Coercion, FDA & Healthcare, Financial Services & Corporate Governance, Intellectual Property, Emerging Technology, Labor & Employment, Race & Sex, Regulatory Process, and State & Local — with an impressive array of scholars, professors, lawyers, and professionals who analyze how specific regulations can stifle innovation, impede opportunity, and harm the very people they were designed to help. To this end the RTP publishes white papers, posts podcasts, records videos, hosts telefora, and holds events across the country to explore the strengths and shortcomings of government regulations and policies. Input from the public is eagerly sought.

Just to give you the flavor: Earlier in the year the RTP released a paper prepared by its “Race & Sex Working Group” (love that name, and I’m proud to be a member of it). The paper critiqued three areas of Obama-administration overreach by the Department of Education’s Office for Civil Rights: transgender bathroom and locker-room access under Title IX; investigations by universities of sexual-assault and harassment claims, also under Title IX; and requirements that school-discipline policies not have a “disparate impact” on the basis of race, under Title VI of the 1964 Civil Rights Act. 

By the way, in addition to my being a member of this committee, it is chaired by Linda Chavez, who of course is also the chairman of the Center for Equal Opportunity.

Here are links to the project’s homepage and an introductory video. Its work is worth following, and the Center for Equal Opportunity will continue to play an important role in supporting it.

Why Are Republicans in Bed With Anti-Population Groups?

A government shutdown has been temporarily averted this week with the passage of a two-week spending bill, but one group that may be left out in the cold when Congress takes up the spending bill again Dec. 22 is DACA recipients. The Deferred Action for Childhood Arrivals program gave young people who came to the U.S. illegally as children -- more than half of them before they turned 7 -- temporary permission to stay and work, provided they met certain criteria, including enrolling in higher education or the military, passing a background check and paying any back taxes owed. But unless the White House and the GOP leadership embrace a solution for the more than 700,000 current DACA recipients to remain in the U.S. legally, we could soon see these young people lose their jobs and face an imminent threat of deportation. Some have already lost their status, and many more will do so unless Congress acts now.

The fate of so-called dreamers has been a political football for more than a decade, with many Republicans and virtually all Democrats once supporting legislation to give them a chance to earn the right to be here legally. But bills that passed one house of Congress died in the other, and the prospects for enacting a permanent solution for people who came here illegally as children seems elusive once again. Republicans who continue to block legislation that would fix the problem claim they are obliged to do so to honor their constituents' wishes and to curb illegal immigration. But the truth is that they are simply beholden to radical special interest groups that have made millions of dollars stoking anti-immigrant fears among a minority of Americans.

Here are the facts: The Federation for American Immigration Reform, the Center for Immigration Studies and NumbersUSA are leaders in the anti-immigration movement and have grown in power and influence because GOP leaders treat them as natural allies. Republicans have invited these groups to testify as experts on immigration before congressional committees, incorporate their studies and findings as if they were gospel, and even allow the groups' staffs to help write legislation. It is an odd alliance, especially for pro-life Republicans, given the history of these groups, their leadership, their funding and, most importantly, their ultimate aim, which is to reduce population size in the U.S.

I have written about these groups at length over the years, in my book "Out of the Barrio: Toward a New Politics of Hispanic Assimilation," in these columns and in articles in conservative magazines and online, including Commentary and National Review. All three groups were founded by John Tanton, who is a former president of Planned Parenthood of West and Northern Michigan and former national president of Zero Population Growth. Their interlocking governing and advisory boards have included members who also serve as leaders in such groups as Negative Population Growth, Californians for Population Stabilization, and Population Connection, as well as in environmentalist groups. The current chairman of the board of the Federation for American Immigration Reform also sits on the board of the International Services Assistance Fund, which promotes permanent sterilization, including a highly controversial procedure that involves inserting the anti-malaria drug quinacrine directly into the uterus, which induces chemical burns, scarring and occlusion of the fallopian tubes. FAIR has also received funding from the pro-eugenics Pioneer Fund, as well as other foundations whose primary aim is to reduce population size.

These organizations want DACA protection to end and oppose any legislative solution that would allow DACA recipients to earn citizenship or be allowed to sponsor family members for permanent resident status. Why? Because doing so would allow the United States' population to continue to grow -- which they view as a threat. Tanton once admitted, "One of my prime concerns is about the decline of folks who look like you and me." But without immigrants, our economy would shrink and our social services net, including Social Security and Medicare, would unravel. We need the kind of people DACA represents -- educated and employed taxpayers who contribute to our country's greatness.

Why are Republicans listening to the likes of FAIR, CIS and NumbersUSA instead of to voters, an overwhelming number of whom support a path forward for the dreamers? That's a question we should be asking House Speaker Paul Ryan and Senate Majority Leader Mitch McConnell before ICE starts showing up at dreamers' doors. There are ample votes to get a permanent fix for dreamers, but it will take a willingness to work across the aisle and to turn a deaf ear to the radical population control fanatics, who are no friends to conservative values of faith, family and freedom.

His Day in Court

"If men were angels, no government would be necessary," James Madison argued in Federalist 51. But he went on to say, "If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions." These words were written to argue for a system of checks and balances in our Constitution, but they have some relevance to the controversy over Alabama Republican candidate for U.S. Senate, Roy Moore.

The people of Alabama may well choose Moore as their senator, despite continuing allegations that Moore engaged in predatory behavior toward young girls when he worked as an attorney in Gadsen, Ala., and, in two instances, may have sexually assaulted underage girls. Moore's supporters disbelieve the women who have come forward and blame the media and so-called establishment Republicans for a witch hunt.  Moore's wife has spread false rumors that the accusers were paid to tell their stories, and others have defended Moore's actions by comparing the then 30-something attorney to the Biblical Joseph and his betrothed Mary, the mother of Jesus Christ. That devout Christians are not sickened by such comparisons speaks worlds about the state of our politics today.

If Roy Moore were a decent man, he would step aside.  But I said the same thing about Bill Clinton in 1998, when the Monica Lewinsky scandal broke, and we all know what happened.  Instead of doing the manly thing, Clinton clung to power and put the nation through the spectacle of semen-stained dresses and "It depends on what the meaning of 'is' is."  Clinton's defenders were liberals, including feminists who saw nothing wrong in a 51-year old commander in chief engaging in sex acts with a 21-year-old intern in the Oval Office.  Their defense was that his policies were good for the country, never mind his "private" behavior. Moore's supporters say much the same today.

The most disheartening aspect of this story -- even in the context of many dozens of stories of sexual misconduct by powerful men in Hollywood, the media and, now, Congress -- is the double standard being applied by those in the Evangelical community.  There was a time in the not too distant past when personal character mattered a great deal to Evangelical voters.  But that view has been eroding for some time now -- among all groups -- but especially among Evangelicals. In 2011, only 30 percent of Evangelicals said, "an elected official who commits an immoral act in their personal life can still behave ethically and fulfill their duties in their public and professional life," but by 2016, 72 percent agreed in a poll taken by PRRI/Brookings.

So, what should happen if the good people of Alabama elect Roy Moore, despite credible allegations of misconduct?  As Federalist 51 says, "experience has taught the necessity of auxiliary precautions" when the people fail. The rules of the U.S. Senate don't allow the option not to seat Moore if elected, but they do allow, under Article I Section 5 of the Constitution, that the Senate may expel him by a two-thirds vote. If Alabama voters send Roy Moore to Congress, the Senate should exercise the extraordinary means at its disposal. Those who defend Moore say he deserves "his day in court," so give it to him by allowing both accused and his accusers testify under oath before the Senate.  And if the accusers' testimony holds up -- as I believe it will -- the Senate should vote to expel him.

It would be far better for everyone involved if Roy Moore did the honorable thing and stepped aside.  But given the credulity of his supporters and the current state of our politics, I don't expect that to happen, which is why James Madison's argument for "auxiliary precautions" has never been more relevant.

Can We Stop Sexual Harassment?

With each new revelation of sexual misconduct by a powerful man, I ask myself, "When will this end?" How is it that so many men have behaved piggishly -- illegally -- and the women they abused remained silent for fear that the humiliation they endured would only be worse if they came forward? How is it that powerful organizations, including those media companies we trust to uncover stories of such wrongdoing, turned a blind eye? And that question is the one that stops me dead in my tracks. Am I part of the problem, too?

For years, I've said that I've never faced sexual harassment. But it may be no accident that I've been spared such an ordeal. I grew up at a time when it was assumed that men were sexually aggressive and it was up to the woman to apply the brakes. My father was very protective of me; he once chased two teenage boys halfway across Denver because they whistled at me when he picked me up at the public swimming pool. I learned early not to make eye contact with strangers of the opposite sex, to dress modestly and to be reserved. It was no accident that after being chosen by my class to be prom princess, no boy asked me to the dance and I ended up going with a classmate whom the nuns assigned to take me.

I've always worked in male-dominated environments -- on Capitol Hill in the early 1970s, in the White House in the mid-1980s, in the corporate world since the late 1990s and in the media for the past 30 years. Several of the high-profile men who've been accused of harassment are men I've worked for, alongside of or been interviewed by, some on multiple occasions. When their names became public, I wasn't surprised. In each instance, my antennae were up when I was around them. These were not guys I'd allow myself to be alone with, certainly not in a social setting and especially not in their hotel room.

But of course, many of the women who've been attacked were confronted in the office. Matt Lauer is accused of summoning young women to his office and locking the door -- in broad daylight, with staff nearby! The same was true of Roger Ailes. Their victims could not have avoided the situations that put them at risk.

I've been lucky, but maybe not so lucky as I'd like to think. My husband reminded me of two situations I had told him about years ago when powerful media figures made advances with the implicit promise of advancing my career. I'd brushed them off, never thinking of the behavior as harassment, but in both instances, I was never invited back on their shows. I was insulted at the very idea that I would need help from such cads -- but in both instances, I was already a well-established figure who could afford to walk away. Most women aren't in that position. They're vulnerable, or they believe they are.

We may never be able entirely to stop powerful men from attempting to use their power to take what they want. Power and sex are a toxic combination. But we can support the women whose tremendous courage allowed them to come forward with these sordid tales. And those women who have some measure of power ourselves need to stand with them, even if we've avoided the worst ordeals ourselves.

We can also help by letting women know that they, too, have power -- the power to set up barriers to protect themselves. Walk away when you feel uncomfortable. Say no to the first hint of improper behavior. Say it loud and clear and let the man know that what he is doing not only is unacceptable but may cost him his job. Don't get into a car at night if you don't know the man well. And never ever go to a man's hotel room. These rules won't protect you in every situation, but they will send a powerful signal. And remember that no job, no promotion is worth losing your dignity or risking your safety.

Cynicism Isn't a Winning Strategy

Republican Ed Gillespie lost his bid to become Virginia governor this week by running one of the most cynical campaigns in recent memory. Gillespie is no racist, but he appealed directly to racism during the campaign. In a state with a growing Latino and immigrant population, four of his campaign ads focused on MS-13, a violent Latino gang, with the words "Kill, Rape, Control" flashing across the screen. But Virginia has one of the lowest violent-crime rates in the country, and the images used in the ad weren't even MS-13 members, much less Virginia residents, with the most frightening photos of heavily tattooed men taken in a prison in El Salvador. Not content to try to scare Virginians into voting for him, Gillespie dog-whistled a favorite alt-right meme as well, promising to protect "our" heritage, by which he meant displaying Confederate statues on public grounds. But Robert E. Lee and Jefferson Davis aren't exactly heroes to the 20 percent of Virginia voters who are African-American.

Gillespie's campaign advisers convinced him that such appeals were his only chance of winning. They were wrong, but even if they had turned out to be right, is winning the only thing that matters today? Gillespie once embraced the notion that reaching out to Hispanics and others who are not part of the traditional base of the GOP was badly needed, even championing a path toward legal status for undocumented immigrants. When Republican gubernatorial candidate Jerry Kilgore lost in 2005, Gillespie, who had just finished his first stint as Republican National Committee chair, blamed a series of anti-illegal-immigration ads for Kilgore's defeat. But with the siren call of Trumpists beckoning, Gillespie sailed to defeat on even more egregious ads than Kilgore's.

President Trump quickly blamed Gillespie's loss on the candidate's failure "to embrace (Trump) or what (Trump stands) for." It's true Gillespie didn't campaign with Trump, but the president lost the state in 2016, and he is less popular today than he was a year ago. If anything, Gillespie lost because he tried to morph into Trump, not run away from the president's toxic brand of politics. It should be a lesson to Republican candidates around the country, particularly those -- and there are many -- who don't share the president's views on race and immigration.

America is not a racist country, and appeals to racism turn off far more voters than they appeal to. Americans were horrified by what happened in Charlottesville this summer, with white nationalists shouting "Jews will not replace us" as they marched through the city to oppose the removal of Confederate statues on public grounds, with one young woman killed when a self-described neo-Nazi ran his car into the crowd. Nor is anti-immigration fervor gripping the country. Exit polls in Virginia show that the No. 1 issue on voters' minds was health care. Immigration was the top voting issue for only about 12 percent of Virginians, ranking below all others except abortion. And while immigrants have changed the face of Virginia over the last 20 years, with about 1 in 8 residents now foreign-born, those immigrants have helped revitalize Virginia's economy and are neighbors, co-workers, friends and family to many native-born voters -- not to mention that immigrants who have naturalized vote, too.

If Republicans hope to retain control of Congress in next year's election, they had better figure out a better strategy than Ed Gillespie's. Given the president's unpopularity -- he's the least-popular president one year after his election than any president since polling began, with less than 40 percent approval -- Trumpism isn't a winning message. Americans are fed up with hate and scapegoating, especially when it is accompanied by incompetence and the failure to get any meaningful legislation through Congress. If Republicans learned anything Tuesdaynight, it should be that Trump doesn't help the GOP; and when the GOP loses, he's quick to disassociate himself from the party and its candidates. With friends like Donald Trump, who needs enemies?

Summary of Recent CEO Achievements

The Center for Equal Opportunity recently prepared for a donor a one-page summary of our achievements over the past twelve months, and I’d like to share it with you.  It makes clear that CEO, a very lean organization, really punches above its weight, and gives our supporters unmatched bang for the buck.

2016-2017 CEO Activities Report

In addition to the Center for Equal Opportunity’s speaking on campuses and other venues, media outreach, and general research and writing (in National Review Online, Commentary Magazine, The New York Times, and other magazines, newspapers, and publications), here are just a few highlights of CEO’s work this past year.  We should note first, however, that in September we hired former Reagan administration official, author, and prominent affirmative action critic, Terry Eastland, as our new senior fellow. He will be working on a variety of anti-preference projects in the coming weeks and months. In some of them, he will join forces with CEO research fellow Althea Nagai, who published an important article on microaggressions this year and will publish another important article on “unconscious bias” in December.

Trump Administration – CEO has worked with the Trump administration to make executive branch appointments and fashion policies consistent with colorblind law. We feel we have had success in both areas so far (we were prominently quoted in a New York Times front-page story supporting the administration’s investigation of racially preferential university admissions), but more remains to be done. One example: As discussed later, CEO plays an important role on a Regulatory Transparency Project committee that has recommended withdrawal of Obama administration “Dear Colleague” letters regarding transgender students (done), campus sexual assault (done), and the disparate-impact approach to school discipline (pending).

Making the Most of Fisher v. University of Texas–This case challenging racial preferences in student admissions relied on a legal theory we developed. CEO was heavily involved in every aspect of the case and was a prominent media presence. The decision that the Supreme Court handed down was ultimately a disappointment, but Justice Kennedy’s decision contained many hedges and limitations, and it did not overrule earlier decisions by the Court limiting racial preferences.  The bottom line is that the Court’s decision leaves plenty of room for future challenges to racial preference policies at other institutions—and at UT itself for that matter (it’s been sued now in state court). We are in touch with state legislators about the possibility of legislation banning racial preferences which the Court has explicitly upheld (as we had urged it to). Mr. Clegg explained to the media—and to college officials at a conference last fall sponsored by Inside Higher Ed and in essays published there, including one this fall—that CEO will be watching universities to ensure they follow the law. We are in touch with a number of allies about FOIA requests and other initiatives.

More Court Cases – We worked with Pacific Legal Foundation regarding its recent cert petition in a case challenging racial preferences in contracting, and with Southeastern Legal Foundation in a federal appellate case involving interminable school desegregation orders that needlessly thwart local control of education. We are also now working on a wide variety of cases involving the defense of voter ID requirements, where we argue in particular to limit the use of the disparate-impact approach, and were in two Supreme Court cases that involved redistricting issues, where we seek to minimize the use of race.  In all these cases we have joined and helped write amicus briefs with our allies.

Federal Register – We review this every day and file formal comments 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, post–Shelby County voting bills)—and, relatedly and more and more frequently, executive branch efforts to “legislate” without Congress.  We are also opposing a pending proposal (carried over from the Obama administration) to expand the federal government’s use of racial classifications in its programs.  At both the federal and state level, we have been extremely active this year in explaining to the public why the automatic re-enfranchisement of felons is a bad idea, and why racial disparities do not prove racial discrimination in areas like law enforcement and school discipline.

Contracting – We have sent memoranda to a wide variety of local governments—and been in touch with local officials—warning them not to use racial preferences; as noted above, we are also involved as amici in litigation, and have advised other potential litigants; and we are working with Hill staff to commission a GAO study on the (legally dubious) use of such preferences.

Coordination and Clearinghouse Finally, the Center for Equal Opportunity plays an important role in disseminating information on our issues to other conservative groups (for that matter, we also serve as an “early warning system” for conservatives on nonracial issues, like sexual-assault and free-speech issues on campus and sexual identity/bathroom access).   For instance, it began and continues to co-host (with the Heritage Foundation) a monthly Civil Rights Working Group lunch attended by like-minded organizations, congressional staff, and other government officials.  Mr. Clegg draws up the meeting’s agenda and leads the discussion.  He also leads the discussion of equal protection issues at the Heritage Foundation’s semiannual Legal Strategy Forum, and advises individuals and organizations that have run afoul of politically correct (and racially discriminatory) policies.  Equally valuable is Mr. Clegg’s work over the years on the Executive Committee of the Federalist Society’s civil rights practice group; both he and Ms. Chavez speak frequently to Federalist Society student and lawyer chapters. Ms. Chavez is chairing the committee on “Race and Sex” in the Federalist Society’s new Regulatory Transparency Project; Mr. Clegg is also on the committee.

Cooper Quotas

North Carolina governor Roy Cooper (D) announced last week a statewide goal of 10 percent for government contracting with minority-owned firms (defined by race, ethnicity, sex, and disability). He’s not alone with such nonsense; indeed, New York governor Andrew Cuomo (D) has set a goal of 30 percent in his state.

Now, it’s good to make sure public contracting programs are open to all, that bidding opportunities are widely publicized beforehand, and that no one gets discriminated against because of skin color, national origin, or sex. But that means no preferences because of skin color, etc. either — whether it’s labeled a “set-aside,” a “quota,” or a “goal,” since they all end up amounting to the same thing, and courts have ruled all to be presumptively unconstitutional.

Such discrimination is unfair and divisive; it breeds corruption and otherwise costs the taxpayers and businesses money to award a contract to someone other than the lowest bidder; and as noted it’s almost always illegal — indeed, unconstitutional — to boot.

On the legal point, there are two problems here. First, before the state can use racial classifications, it must at a minimum do a “disparity study” that documents evidence of discrimination in a specific contracting area that has to be remedied. Governor Cooper gets the process backward: He sets the racial goal, and then says it can be adjusted if some disparity study comes along that proves it’s too high.

Second, and in any event, in 2017 there’s no reason why quotas are the “narrowly tailored” way to remedy any discrimination. Rather, the state should ban racially preferential treatment for any group, enforce that ban, and require plenty of transparency — in publicizing bidding opportunities and in announcing the winners — to avoid cheating.

Contracts are not like employment selection or university admissions, where there is often an irreducible and significant amount of subjectivity in the decisionmaking. Rather, the low-bid process in government contracting can be made very transparent at every step, and this transparency should make it relatively easy to achieve any remedial purpose, that is, to detect and correct discrimination. This is an area where, as Chief Justice Roberts wrote famously, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

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Heroic Book Review --  I’d like to add my voice to the chorus praising Scalia Speaks:  Reflections on Law, Faith, and Life Well Lived, the recent compendium of speeches given by the late, great justice. In doing so, let me offer a couple of points that I’ve not seen made elsewhere.

First, because this is book is not only entertaining and thoughtful but also accessible to nonlawyers — the speeches are divided into six categories, only one of which is “On Law” — it’s a good way for us conservative lawyers to show our laymen friends the reason we loved Justice Scalia as we did. This sort of enthusiasm is not always easy to explain without eyes glazing over; to outsiders, I suspect, the Federalist Society annual meeting must seem like Sesame Street’s “National Association of W Lovers,” where W stands for Scalia. Anyway, I’m giving a copy to my parents as a Christmas present.

Second, the insights are as fresh as today’s newspaper. Case in point: The day I finished the book some columnist criticized on separation of powers grounds those politicians who attack judges; well, Justice Scalia explains more than once in this book that, when judges act as politicians, their being treated as such is not only inevitable but even desirable, if the only alternative is to accept their rule as that of a new aristocracy.

Now, it is common knowledge that one of the book’s editors, Ed Whelan, is a good friend, so to show that I am not in the tank, let me note: (1) the editors are not perfect, and I did find one typo in the book (on page 310, the failure to capitalize the last word in “Grand Army of the republic”); (2) Justice Scalia should have credited Emil Faber rather than simply plagiarizing the latter’s trenchant observation, “Knowledge is good” (page 328); and (3) it was unconscionable for my hero Justice Scalia to characterize, albeit indirectly, William F. Buckley Jr., another hero of mine, as “one smart-aleck political commentator” (page 329).

Still, all is forgiven since I now know that Justice Scalia, proud Italian-American Catholic though he was, was also apparently a fan of the Irish-British Protestant and a third hero of mine, C.S. Lewis. The justice pays him this fine compliment: “Had he been a lawyer, C.S. Lewis would have been a magnificent legal writer.” And had he had the chance to read what Justice Scalia has to say “On Faith,” I’m sure Mr. Lewis would have found some way to return the compliment.

A fine book!

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A First-Rate Article on the Second Amendment – In light of the horrible shootings near San Antonio over the weekend, I’d like to commend to our readers this article by Professor Nelson Lund. It’s a thorough discussion of a recent gun-control column in the New York Times by Bret Stephens. It’s worth reading not only as a response to Mr. Stephens, but for its broader defense of the right to bear arms, and no one knows more about the Second Amendment than Professor Lund.

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The Washington Post Doesn’t Get It – The Washington Post this week devoted a long and astonishingly one-sided news story to the efforts of Native Hawaiians to turn themselves into a federally recognized Indian tribe, without saying one word about the conservative objections to this. The basic problem is that there is a big difference, as a matter of law and policy, between the federal government acknowledging a preexisting political entity, versus creating a brand-new such entity on the basis of race or ethnicity. As a legal matter, the Supreme Court has warned about the potential problems here with the equal-protection guarantee of the Constitution (see its 2000 ruling in Rice v. Cayetano). And as a policy matter, this is more balkanization and identity politics, just what the United States does not need.