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Dorm Segregation in 2016: The UConn Con

It’s back-to-school time, and Michael Meyers of the New York Civil Rights Coalition and I posted this column on National Review Online last Friday.

Segregation is back. These past few weeks have seen controversy over black-student housing ads for roommates directed to “people of color” only, and over colleges and a law school that created separate class sections restricted for black students.

What is going on? It appears, alas, that public universities have formally reintroduced and made fashionable racial segregation, in the guise of creating safe spaces for “their” minority students — to endorse, fund, and foster black separatism in higher education. And that’s what the University of Connecticut has instituted with its plans to open a dormitory on its Storrs campus, where black male students will be clustered and separated from their peers of other skin colors.

But the last thing that campuses should be doing these days is encouraging racial isolation and stereotyping, along with a sense of grievance and a victim mentality. All that is certain to make race relations at our universities worse, not better.

The claim, according to University of Connecticut officials and documents obtained by us through a freedom-of-information request, is that this housing segregation will help address the lower graduation rates of its black-male students — lower as compared with male students of other colors and with women. But the social science here is iffy and laden with the paternalism, doubletalk, and the soft bigotry of low expectations whereby black men are burdened and labeled as being “at risk.”

UConn boasts that this “choice” of housing is precisely what its black-male students need and want. If so, the decades-old lament of social psychologist Kenneth B. Clark has come full circle: He observed that white racism would have gained its greatest triumph had it been able in the 1950s and 1960s “to persuade its black victims that segregation was not only acceptable but desirable in itself, and that the justification for this separatism was color alone.” Clark’s research on the effects of Jim Crow segregation was prominently cited in the Supreme Court’s landmark decision in Brown v. Board of Education, which struck down segregation on the ground that separate public schools are “inherently unequal.”

Nonetheless, UConn sought and got a grant from a private educational foundation to fund the “special” dorm. Only after criticism from us and a few others, including two members of the U.S. Commission on Civil Rights, did UConn change its public rhetoric — explaining that the dorm would be “open” to any students who identified with the African-American male experience. But there’s no doubt that racial classifications will be used and racial segregation encouraged.

Not only is this bad policy, but it’s legally dubious as well. There’s Brown v. Board of Education, of course, and the Supreme Court has put constraints on the use of racial classifications in higher education in its two rulings in Fisher v. University of Texas, a case challenging the use of racial preferences in university admissions. So it makes no sense at all for UConn to embark on this treacherous new enterprise in the meantime. 

What’s more, it’s hard to imagine what legal justification for the plan the university can plausibly offer. As noted, the origin of the program was as a means to address the (lower) graduation rates of black men. But most black men at the university do graduate, and plenty of women and non-blacks do not. So why should the non-graduation problem be addressed in a sex- and race-based way? This is not a “narrowly tailored” use of race and sex, as Fisher I and II demanded, and on this point the university will be given “no deference.”

As the Supreme Court also cautioned in Fisher I, each student is to be “evaluated as an individual and not in a way that makes an applicant’s race or ethnicity the defining feature of his or her application.” But who can doubt that this is precisely what the University of Connecticut is doing? 

UConn can’t deny what it’s doing, so its officials have clammed up. And Connecticut’s governor and UConn’s trustees refuse to intercede or even speak.

And where are the traditional civil-rights groups, such as the NAACP and the ACLU, that fancy themselves to be minorities’ advocates? Once upon a time, they vehemently opposed racial separatism in all its guises. But now they mostly tout black separatism as a viable remedy to purported white racism on campus, providing beleaguered black males “protection” and “safe” spaces — that is, spaces apart from whites and Asians and Hispanics. This surrender to racialism is a wanton betrayal of the once inviolate principles of equal access and treatment without regard to skin color.

As students head back to school, they mustn’t be directed to racially designated doors on campus or assigned to “black” dorms. That kind of racialism was outlawed long ago. It’s a lesson we thought was permanently learned, and educators ought to know better than to categorize and separate individuals on the flimsy basis of skin color.

No, U.S. Schools Aren’t “Resegregating”

The front-page headline on the Washington Post last week screamed, “New Data Shows U.S. schools Are Resegregating.” 

Not true. Segregation means the government separating students by race and telling them it is illegal for students of one race to attend the same schools as students of another race. So the number of segregated public schools in the United States today is . . . zero.

What is being complained about, instead, are racial “imbalances” that come about, not as a result of racist laws, but because of residential living patterns and the general practice of assigning children to schools that are near where they live. Deliberately assigning children to schools on the basis of skin color — which, ironically, is what the Left wants in order to correct these “imbalances” — is bad policy and illegal, in light of not only Brown v. Board of Education but, more recently, the Supreme Court’s 2007 decision in Parents Involved in Community Schools v.  Seattle School District No. 1

Assigning students on the basis of skin color can hurt minority students as well as nonminority students. As the GAO study that the Post story discusses notes, “Further, according to officials, some magnets with openings could not accept minority students because doing so would interfere with the ratio of minority to non-minority students that the district was trying to achieve.” And as I noted in last week’s email, St. Louis-area public school system was recently sued for refusing to admit a black student because, well, he was black, and that would have interfered with the politically correct racial mix being sought.

There’s more: The Post article also mixes poverty into the equation, but of course here again the fact that rich children live in different neighborhoods than poor children, and therefore are likely to attend different schools, is a very different phenomenon than Jim Crow segregation. And defining “resegregation” can be tricky, especially when there are more than two ethnic groups involved and where the number of white students relative to nonwhites is declining anyhow, as the Post story acknowledges. 

It is true that some public schools are better than others, and that the schools that rich kids go to will often be better than the schools that poor kids go to, and there’s nothing wrong with trying to improve all schools. What’s even better is giving parents more choice in where to send their children, though of course this is less popular with the Left, because it is unpopular with teachers’ unions. 

In any event, there is no reason to use the racial makeup of a school as a proxy for whether it is a good school or a bad school.  In fact, that would be racist, wouldn’t it?

P.S.  To make matters worse, this “resegregation” non-problem is being used to justify a bad bill that has just been introduced in Congress:  one that would make it easier for plaintiffs to bring dubious “disparate impact” lawsuits against anyone who gets federal money and isn’t getting their racial numbers“right.” 

Read about this bad bill here.

Asian American Groups File Discrimination Complaints -- A number of Asian American groups are filing a complaint this week against Brown, Dartmouth, and Yale for admissions discrimination.  

You can read the complaint here.

Of course, it is not really a matter of dispute that whites and Asian Americans are discriminated against vis-a-vis “underrepresented minorities” (that is, blacks, Latinos, and Native Americans). That much is admitted by the schools themselves. 

The question is whether the politically correct discrimination is so ham-handed that it violates the constraints the Supreme Court has put on it, and whether the discrimination against Asian Americans is likewise vis-a-vis whites, which remains politically incorrect. Still, the complaint is welcome, especially as we continue to await the Supreme Court’s decision in Fisher v. University of Texas, which one hopes will put still more constraints on all racial discrimination in university admissions.

Speaking of which …

“Quotas Must Mean Lower Standards” -- So says the chancellor of Oxford.  Glad we’ve got that settled.  Although some approaches lower standards even more than simple racial quotas …

Criminals on Campus -- The Obama administration is encouraging universities to admit more criminals, and of course the soft-on-crime, pro-quota New York Times thinks this is a swell idea. 

Now, I’m sure that there are some people with criminal records who ought to be admitted to schools, and some who should not. I’m also sure (1) that the decision is one for schools to make, not the federal government, and (2) that the decision should not be driven by the racial makeup of who gets in and who doesn’t, which naturally is what the Obama administration’s “(“disparate impact”) focus is.

Finally, and also speaking of felons, last week I participated in a debate sponsored by the National Constitution Center on the recent decision by Virginia governor Terry McAuliffe to reenfranchise over 200,000 felons.  You can listen to the debate here.  I was also interviewed about the issue on National Public Radio and for Australian television (there’s a brief clip of me at about the two-minute mark here).

Center for Equal Opportunity Praises Court's School Decisions

The Center for Equal Opportunity praised the Supreme Court's decisions in the Seattle and Louisville school cases today.

CEO chairman Linda Chavez said: "Today's decisions vindicate the principle in Brown v. Board of Education that schoolchildren should not be assigned to schools on the basis of skin color. It is a victory for parents and students of all races."

CEO president and general counsel Roger Clegg said: "As America becomes increasingly a multiracial and multiethnic society, it also becomes more and more untenable to have laws that categorize our people because of race and national origin."

Both Chavez and Clegg said that they hoped that the Bush administration, which had filed briefs in the cases urging the Court to strike down the race-based student assignments, would use the decisions to dismantle racial and ethnic preferences still being used by the federal government, and to attack racial and ethnic discrimination elsewhere.

CEO had joined an amicus brief with the Pacific Legal Foundation in urging the Court to grant review in the cases, and then joined again with PLF after the Court had granted review, urging the Court to declare the race-based student assignment policies in the two school districts to be unconstitutional.
The Center for Equal Opportunity is a nonprofit, nonpartisan research and educational foundation that
focuses on civil rights, bilingual education, and immigration and assimilation issues nationwide.

Ignore claims of resegregation

On May 17, we will celebrate the 60th anniversary of the Supreme Court's landmark decision in Brown v. Board of Education. And that is certainly something worth celebrating.

The only fly in the ointment is that this event will also prompt many solemn pronouncements that, alas, our schools are just as segregated as ever and/or that they are resegregating. We will be told that therefore the promise of Brown remains unfulfilled, and that this is the reason for continuing racial disparities in education.

But this is not true.

Here's the key statistic that must always be borne in mind: The number of segregated (or resegregated) public schools in the United States in 2014 is ... zero.

Segregation means sending children to separate schools because of their race; it does not mean a failure to have socially engineered racial balance. So we can celebrate, unreservedly, the fact that we no longer have racial segregation in our public schools.

Tavis Smiley: Still separate, still unequal

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

As Justice Clarence Thomas once wrote, "It never ceases to amaze me that courts are so willing to assume that anything that is predominately black must be inferior." Some intellectuals and academics, unfortunately, are even quicker than the courts to jump to this conclusion.

Indeed and ironically, the real reasons for existing racial disparities are generally left unaddressed by the same well-meaning people who complain about "resegregation."

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

It may be politically incorrect, but we must acknowledge that out-of-wedlock births are a bad thing and that anti-"acting white" peer pressure exists. And while liberal groups will admit that substandard schools are a problem, they will also resist (partly because of recalcitrant teacher unions ) the most promising reforms -- involving competition among schools, merit pay for teachers and more choice for parents and children -- in favor of just throwing more money at the problem. But lack of money is not the problem, any more than lack of racial balance is.

The only way to achieve the politically correct balance that some misguidedly demand is not by ignoring students' skin color, but by using it to sort, assign and bus them. This is flatly at odds with Brown, which prohibited race-based assignments of students.

And it's not even true that there is a declining lack of racial balance. Sometimes an "Index of Exposure" has been used to bolster that claim, but this is a flawed measure, as explained by Abigail and Stephan Thernstrom in their 2003 classic No Excuses: Closing the Racial Gap in Learning. The Thernstroms conclude that "minority students are not becoming more racially isolated; white students typically attend schools that are much more racially and ethnically diverse than 30 years ago, and the modest decline in the exposure of black and Hispanic children to whites is solely due to the declining share of white children in the school age population."

There is also good reason to be skeptical, as Justice Thomas warned, of the claim that more racial-balance means better education. To quote two other leading experts in this area, David Armor and Christine Rossell, "there is not a single example in the published literature of a comprehensive racial balance plan that has improved black achievement or that has reduced the black-white achievement gap significantly."

Bottom line: Let's celebrate the anniversary of Brown. And let's forget about racial bean-counting and, instead, focus on improving our schools, regardless of their racial makeup.

Roger Clegg testifies regarding H.R. 40


December 18, 2007
Rayburn House Office Building, Room 2141

Thank you very much, Mr. Chairman, for the opportunity to testify today. My name is Roger Clegg, and I am president and general counsel of the Center for Equal Opportunity, a nonprofit research and educational organization that is based in Falls Church, Virginia. Our chairman is Linda Chavez, and our focus is on public policy issues that involve race and ethnicity, such as civil rights, bilingual education, and immigration and assimilation. I should also note that I was a deputy in the U.S. Department of Justice's Civil Rights Division for four years, from 1987 to 1991.


The discussion today of the legacy of the trans-Atlantic slave trade is intended, I presume, to help lay the groundwork for favorable consideration of H.R. 40, the "Commission to Study Reparation Proposals for African-Americans Act." And the enterprise that H.R. 40 would have us embark on, in turn, is as follows: First, a commission would determine what effects slavery and post-slavery discrimination had on African Americans and what "lingering negative effects" it continues to have on them; and then, second, it would suggest possible remedies for those effects. The two remedies that are explicitly mentioned are an apology and some form of compensation.

There are any number of problems with this enterprise, and I would like briefly to discuss some of them in my testimony today. (Some of the points I will make are also expressed, often in more detail, in a dialogue I have written on this topic, a version of which was published inEngage magazine, and which I have included as an appendix to my testimony; I've also included an op-ed I wrote on a recent Chicago ordinance requiring city contractors to document any slavery-related business in the antebellum era.)

This Is an Unnecessary and Hopeless Task for Such a Government Commission

First, this research project is ill-suited for a government commission. H.R. 40 says that "sufficient inquiry has not been made into the effects of the institution of slavery on living African-Americans and society in the United States." I am not sure what that statement is based on, and I am not a professional historian. But as a lay reader and a civil rights lawyer, it seems to me that there is no shortage of books and articles about slavery, and discrimination, and the problems facing the African American community today, and the way all these intersect. I am not declaring that there has been "sufficient inquiry"; just that there has been a great deal and that it continues--and that, given the intrinsic interest of these topics, especially among those in the academy, it will likely continue for the foreseeable future.

What I would declare, moreover, is that this inquiry will never end, and it will be a long time before anyone would presume to call the inquiry "sufficient." Few historical inquiries ever are: There is always some new angle to explore. Further, the conclusions that historians will draw will always be incomplete, imperfect, and challenged by contemporary and future historians. That is the nature of historical scholarship, especially for issues as complex as this one.

H.R. 40 suggests, on the other hand, that something like a definitive answer will be possible if the government takes $8 million, hires seven "especially qualified" people, and gives them a year to figure it all out. This is, of course, absurd.

No one will dispute that slavery and Jim Crow were horrible and inhumane; no one will dispute that discrimination still exists, though only a delusional person would deny that America has made radical, dramatic, inspiring progress in the last 40 years-that its society has truly been transformed in an astonishingly short period of time. But it is impossible to say how much of the present is the result of one particular kind of event in the past. Only someone very arrogant or very foolish would make such a pronouncement.

Let me give just one example. The principal hurdle facing the African American community today is the fact that 7 out of 10 African Americans are born out of wedlock. Just about any social problem you can name-crime, drugs, dropping out of school, doing poorly in school, and so forth-has a strong correlation with growing up in a home without a father. And it is very hard to argue that this problem is traceable to slavery or Jim Crow, since illegitimacy rates started to skyrocket in the African American community just at the time that Jim Crow was starting to crumble.

Given that, how can anyone say with any confidence that such-and-such amount of such-and-such a social problem facing African Americans must be due to slavery? It cannot be done.

Race-Based Compensation Would Be Both Illogical and Unconstitutional

But let's suppose that, nonetheless, the commission decides that it can be done. Let's suppose that this commission says, "Forty-six percent of the poverty in the African American community today can be traced to slavery and discrimination, forty-five percent is caused by illegitimacy, and the remaining nine percent is just bad luck," or some such silly thing. Or let's suppose that it says something less silly, but so obvious that it does not take a government commission to figure it out--something like, "To some significant extent, the disproportionate amount of poverty facing the African American community today can be traced to slavery and the discrimination its members faced."

Would it follow that some sort of "compensation"--one of the two remedies H.R. 40 explicitly asks the commission to consider--ought to be paid to African Americans? No. It certainly wouldn't make sense to pay compensation to African Americans who are not living in poverty. It wouldn't make sense to pay compensation to African Americans who are living in poverty if that poverty was not caused by slavery and Jim Crow-to give an obvious example, to African Americans who just immigrated here. Yet requiring a particular person to prove his slave ancestry leads to many problems (as discussed in Appendix A); presuming slave ancestry because of a person's appearance raises many problems, too; and there are problems with simply taking people at their word as well.

Also, why should an African American who could trace his poverty to slavery be entitled to compensation over, say, a poor American Indian who could not but could trace it to some other historical wrong (in this case, say, a broken treaty)? Or a poor Latino or a poor Asian or even a poor white? Any of them might be able to trace his poverty to somehistorical wrong.

But most fundamentally, why does it matter whether the poverty is traceable to a historical wrong? Suppose you have two children. One could show somehow that the reason he was poor was because of the discrimination his family suffered. The other child is poor for no reason except his mother and father just immigrated to this country from a poverty-stricken homeland. Is the government supposed to say, "We view the first child's poverty as a problem of federal concern, but not the second child's"?

Of course not. There is no reason why eligibility for a social program ought to hinge on whether a citizen can trace his need for the program to this or that historical cause.

If we design social programs to help disadvantaged people, and if disadvantaged people are disproportionately African American because of the discrimination that they have disproportionately suffered, then African Americans disproportionately will be eligible for those programs. And, indeed, that is the case today. More than that makes no sense. And if the commission simply recommends more social programs that are not race-based, then it is even harder to see why its historical focus should be on one particular subset of one particular racial group.

If, finally, we were to make a social program available to those of one race and not to others, there would be serious constitutional problems. Presumably the justification for the program would be remedial, but the Supreme Court has--quite rightly--rejected general claims of societal discrimination as not sufficiently compelling to justify racial classifications.

An Apology Would Make No Sense Either

As for an apology, the second possible remedy listed by H.R. 40: The bill asks "Whether the Government of the United States should offer a formal apology on behalf of the people of the United States for the perpetuation of gross human rights violations on African slaves and their descendants."

This is, at best, an odd apology. What would really be appropriate, of course, is for the slave-traders and the slave-masters to apologize to the slaves-but all these folks have long since passed on to their just rewards.

So instead we have the U.S. government (which actually ended slavery, at the cost of much blood and treasure) apologizing on behalf of today's American people (none of whom ever owned slaves, and most of whom never had ancestors who did, either) to ... whom? The bill does not say. Maybe the idea is just to apologize to ourselves, but that seems rather strange. Presumably the idea is to apologize to living African Americans. But these African Americans are not slaves; many are descended from slaves, but many are not; many of the former-maybe most now-are descended from both slaves and slave-owners.

Mr. Chairman, I cannot resist pointing out that, if there is anyone in the United States today from whom an apology for slavery and Jim Crow would be appropriate, it would be, not the U.S. government, and certainly not the American people-but the Democratic Party. It, after all, was historically the party of slavery, secession, and segregation.

But let's be honest: Inevitably, such apologies are intended and interpreted as whites apologizing to blacks for slavery. (I wonder what Asians and Latinos, as well as American Indians, think of this theater?) But no white today is or ever was a slaveholder; no black today is or ever was a slave. What's the point of one apologizing to the other?

Everyone has an ancestor who was wronged by someone else's ancestor; there is no point in trying to find a thread for each present-day misfortune in an individual's life that can be followed back through the decades to a particular misdeed; and anyone's poverty today likely has many causes-some old, some recent, some other people's fault, some one's own. Nobody nowadays thinks slavery was anything but an abomination; nobody learns anything from this charade.

We are told that these apologies will help to bring closure, help enable us to move on. Nonsense-and that is not their intent, at least for many people. The idea is to reopen wounds, to keep grievance alive, to keep white people on the hook. An obsession with past wrongs, to the extent that present opportunity and future promise are ignored or slighted, is a bad thing.

A great strength of Americans is that we are forward looking. The trouble with slavery apologies is that they are designed to make whites feel guilty and to urge blacks to think of themselves as victims. Neither emotion is valid in these closing days of the year 2007; both are bad for race relations. In particular, the last thing an African American needs in 2007 is an excuse to fail. As individual white people will go about their business--and Latinos and Asians and Arab Americans and American Indians--individual black people will be left with the same choice they've had for years: embrace self-reliance and responsibility, or fail and blame it on others.


All of this is true not just for the apology issue but also for the entire enterprise that H.R. 40 would embark on: That is, it would accomplish nothing and would cost much. And I don't mean monetary costs, but social costs: Specifically, the poisonous effect it would have a racial relations, and the pernicious message it would send, in particular, to those in the African American community, that their focus should be on what was done to them in the past, rather than the opportunities they have now.

Thank you again, Mr. Chairman, for the opportunity to testify today. I would be happy to try to answer any questions the Subcommittee may have for me.

Appendix A:

A Dialogue on Reparations
by Roger Clegg (adapted from his Engage magazine article, May 2003)

A. Should African Americans be paid reparations for slavery?

B. The short answer is no, but first let's unpack that question. Do you mean only for slavery?--because most reparations advocates also think that reparations are appropriate for post-slavery discrimination.

A. Oh, yes. That should be included, too.

B. But in that case, why limit it to blacks? Other groups have been discriminated against as well.

A. But not as much, wouldn't you agree?

B. I suppose, although you could make a case that the treatment of American Indians has been pretty bad. And Japanese Americans were the only ones actually interned.

A. That's true; those are the two others that are especially bad. But the existence of treaties and reservations makes it possible to consider American Indians separately, and of course the Japanese Americans who were interned already have received reparations.

B. Fair enough. You would concede that other groups have been discriminated against, too, obviously, but your point is that they didn't suffer under an actual Jim Crow system?

A. Correct.

B. But Latino advocates would argue that there has been school and housing segregation, ethnic gerrymandering, and employment discrimination against them. So might Asian advocates. It is certainly defensible to draw a line between blacks and everyone else. But I want to make the point that if you open the door to reparations for blacks for non-slavery discrimination, then others will try to come through that door.

A. Well, what if we limit it to reparations just for slavery, then?

B. This will complicate matters considerably. For instance, it then becomes important that only those with slave ancestors be compensated. Blacks who immigrated after the 13th Amendment (December 6, 1865) cannot really claim to have been victims of slavery, nor can their descendants, nor can the descendants of black freemen.

A. But aren't the vast majority of African Americans descendants of slaves?

B. Good question. I don't know. You would agree that the higher the percentage who aren't, the more problematic reparations for all African Americans is, right?

A. Yes, but you would agree that if the percentage is high enough, the assumption that all blacks qualify is a reasonable one?

B. Reasonable, yes, although not so compelling and narrowly tailored-as the lawyers put it-to pass strict scrutiny. Let me also ask you this. How will we prove who is an African American? That is, if someone claims his or her share of reparations, how will you determine if they are in fact an African American.

A. Won't just looking at the person be good enough in most cases?

B. It depends on how honest you think people are. If you start handing out $50,000 checks for anyone who claims to be an African American, and you take everyone at his word, I predict you will have some problems with false claims. To put it mildly.

A. Let's have a two-part test. If you can tell the person is black just by looking at them, that's good enough. If not, then the person has to provide some additional proof.

B. So let me get this straight. You'll have a line of people, and some government bureaucrat will size each one up. He'll judge how dark their skin is-maybe by holding up a paper grocery bag next to it-how kinky or nappy their hair is, the shape of their noses and lips, that sort of thing? And the ones that are judged to be black will get their check?

A. I guess that's about right.

B. Yuck. And the ones who aren't judged to be black, even though they assert they are, will then have to prove it in some way. DNA tests? Genealogical records? Sworn affidavits?

A. Something like that.

B. Yuck again. And, as I pointed out earlier, that will be more difficult if you have to show that you are a slave's descendant. Anyway, will the government be using a one-drop rule? That is, do you get your check even if you have only one African American ancestor, as opposed to being, say, at least half African American?

A. I don't see any alternative. And probably a person and his or her ancestors will have suffered a fair amount of discrimination under the one-drop rule.

B. All right. I agree that it would be an even bigger mess if you had to trace back not just to one ancestor but to several. By the way, how are you going to define African American?

A. Someone whose ancestors came from Africa.

B. But it can't be just anywhere in Africa, right? I mean, white South Africans won't do, nor would North African Arabs, right? Back to my line example, suppose one of the people standing in line admits that he doesn't "look black," but says that's just because his African ancestors were Afrikaner or Egyptian or Moroccan. And what if he can prove it?

A. Well, I can see that it would be a problem if we had to prove immigration from a specific country. Maybe the DNA people can help us out.

B. Maybe. But there's a certain irony here, since generally those supporting reparations also believe that race is a social construct without any true basis in biological science.

A. Look, I see your point, but many reparations advocates make clear that they aren't proposing that individual checks be cut. Instead, they want social programs put in place as the reparations. So you aren't going to have this problem of whites claiming to be blacks.

B. Granted, there will be less fraud if what you're offering in a place in a special school or job training facility rather than a $50,000 check.

A. A lot less. The payoff is less, and the whites who might otherwise be interested are going to be poor or working class, and they aren't going to want to label themselves black before the whole world. Their friends will see them going to the school or whatever, and will say, "Oh, I see you've got some plantation blood." They won't like that.

B. Maybe, although you're doing some stereotyping yourself here. Plus, it's a fair question why a poor or working class white-whose ancestors probably suffered some, too, one way or another-shouldn't be eligible for the programs anyhow. But that brings us to the basic question: Should society pay reparations to all blacks, and only to blacks?

A. The discrimination suffered by African Americans was especially cruel, and so special compensation is required.

B. Well, that doesn't make sense. The special cruelty isn't present now, and wasn't suffered by most blacks living now. The median age of African Americans is about 30, which means a birth-date after the end of the Jim Crow era. So it can't be the special cruelty. It must be that the economic impact was especially severe and long-lasting.

A. Whatever.

B. But if it's the economic impact that matters, why does it matter what its origins were? I mean, you have one child whose grandfather was lynched, and another child whose grandparents were drowned when their boat sank in the South China Sea. Both live in poverty. Why do we make some programs available to one but not to the other?

A. America didn't sink the boat. But it did the lynching. Remember it is reparations we are talking about. Reparations are paid by the wrongdoer to the victim. America is responsible for slavery and Jim Crow discrimination in a way it is not responsible for other calamities that some people have suffered. We owe something to blacks, in a way we don't to anyone else.

B. What do you mean "we"? The American people now-its taxpayers, voters, officials, and so forth-are in no way responsible for slavery or Jim Crow discrimination. Even if you say that it was the fault of American federal and state governments and corporations and other non-human entities that were around then and are around now, the reparations are going to have to come out of the pockets of those who don'towe African Americans for exploitation, because they weren't around when the exploitation happened.

A. But they still enjoy the profits from that exploitation.

B. Let's talk about that. If you mean that America as a whole was built on the backs of slave labor-an exaggeration, but I'll concede that certainly slave labor was one kind of labor that helped build America-it is true that we still enjoy the results of slave labor, but then that is no less true for blacks than for whites. That is, slaves may have cleared the farmland that now feeds us, but it feeds us black and white alike.

A. But whites profited more from it than blacks did.

B. Certainly slaveowners profited from it more than slaves did. But you're assuming that the class of 19th century slaveowners and slaves is the same as the class of 21st century whites (really, nonblacks) and blacks. The groups are completely different.

A. You haven't made the argument that slavery actually benefited blacks, because the 21stcentury descendants of slaves are better off than 21stcentury blacks still living in Africa.

B. I actually think that's a legitimate argument, if we start playing the game of what Thomas Sowell calls "cosmic justice." That's where the government tries to ascertain how much wealth a person would have if nothing unfair happened to any of one's ancestors. The problem with the game, of course, is that it is impossible to untangle the past. There's no doubt that slavery and discrimination have, in the aggregate, diminished the wealth of African Americans. But so have disproportionately high rates of illegitimacy, and substance abuse, and crime, and a failure to take advantage of the educational, employment, and business opportunities that were available. To be sure, these bad life-decisions were often a result of discrimination, but that only confirms how impossible it is to say that group X has less wealth than group non-X, and that Y percent of this gap is because of bad things that group non-X did and 100 minus Y percent is due to bad things that X themselves did. It can't be done. But if you do decide to play this game then, yes, I think it is legitimate to point out that, but for slavery, group X would actually have much less wealth than they do now.

Let me also point out that most of the wealth that the nonblacks have was acquired after slavery. Lots of nonblacks-not just Asians and Latinos, but the Irish and Italians, for instance-didn't arrive here until after slavery. And lots of people who did have some wealth in the early 20th century saw it wiped out in the Great Depression. So telling the descendants of these people that they have to pay out a chunk of their wealth in reparations for slavery doesn't make a lot of sense.

Conversely, the blacks who are paid reparations will include many who actually have more money than the average nonblack, and many who are not descendants of slaves-whose ancestors actually immigrated to the United States quite recently-as well as many whose lack of wealth is more their own fault than that of some slaveowner in the distant past.

A. Enough! This is all logic chopping. The fact of the matter is that slavery and Jim Crow discrimination were uniquely grievous wrongs, that they did result in present blacks having less money than they would have if they had been treated decently, and that it is only fair that they be compensated for these wrongs.

B. I think the points I've raised are more fundamental and more valid than mere logic chopping. But even if you think that, after weighing my arguments against yours, there remain some potential benefits to reparations, you also have to weigh the costs.

A. Such as?

B. Reparations will be absolutely poisonous to race relations. They will increase white resentment, and they will increase blacks' victim mentality. Those are the last things we need. As discussed, there are also serious practical problems in deciding who is eligible for the program; other groups will soon demand reparations, too; and I will guarantee you that, once the program is begun, it will never end, and the demands for more and more reparations will only increase over time, and never diminish.

Appendix B:

TheBizarre Campaign To Eliminate "Profiteers of Slavery":

Practical Questions about Chicago Ordinance Are Overwhelming

by Roger Clegg (from Human Events, January 12, 2003)

Last fall, according to itsTribune, Chicago "became the first major city in the nation" to pass a "groundbreaking ordinance requiring all businesses vying for city contracts to search their records and disclose whether they profited from slavery." Cleveland and New York City are now considering similar laws.

To quote the ordinance itself, any such company "must complete an affidavit verifying that the contractor has searched any and all records of the company or any predecessor company regarding records of investments or profits from slavery or slaveholder insurance policies during the slavery era. The names of any slaves or slaveholders described in those records must be disclosed in the affidavit."

The last sentence is straightforward enough, and will be useful for plaintiffs' lawyers looking for clients. But beyond that, I have a few questions about the meaning of the phrase in the first sentence, "investments or profits from slavery or slaveholder insurance policies."

For starters, may we assume that it's not enough for a company just to look to see if there is a line in the annual report that says, "Profit from slavery: $1,305.16"? That would be pretty unlikely. So are we to assume that the company is supposed to try to figure out now for itself what the profit was, or at least to collect the relevant records? But the calculations won't be easy, nor for that matter defining which records are relevant.

I think I know what "slaveholder insurance policies" are, but how do you calculate "profits" from them? You can't just add up the premiums. You also have to subtract out the payments, right? How about the company's overhead? Do you have to prorate that, since the policy also probably wrote non-slavery policies? Isn't that going to be awfully hard to do for 140-year-old transactions?

But the real problem is what is meant by "profits from slavery" or "investments" from slavery. Buying and selling slaves is understandable, but what if you bought cotton from a plantation? What if you bought cloth from an English company that bought cotton from a plantation? What if you bought shirts from a company that bought cloth from an English company that bought cotton from the plantation? Is the company supposed to collect all this information?

What if you sold a plow to a plantation? What if you sold a plow to a plantation but you didn't know then or don't know now if it had slaves on it? What if you manufactured plows and sold one to a retailer who sold one to a plantation? What if you don't know whether the retailer sold plows to plantations or not, or if there were slaves on them?

What if you sold a watch or a newspaper or a train ticket to a slaveowner? What if didn't keep track of the professions of those to whom you sold these items?

And how, once again, does one calculate the "profits" or "investments" from all this? You can't just add up the sales; you also have to subtract out the costs, right? How do you tell how much of the profit is from slavery and how much is from some other factor? If you sold a really ingenious plow to a plantation, was the profit because of slavery or because of your ingenuity?

All right. Now suppose that we figure all this out and collect all the information. What precisely is the city going to do with it?

Either it will refuse to do business with companies that "profited" or "invested" in slavery, or not. If the latter, then this whole exercise is pointless, isn't it? If the former, then how much profit triggers the boycott? A penny? A million dollars? Somewhere in between?

And what, precisely, is the boycott supposed to accomplish? Is it supposed to punish the company? For what--for engaging in what were then perfectly legal activities? For decisions made by people long dead? For profits distributed to shareholders who spent them God knows where and are also long dead?

And, of course, the city will also be punished. After all, if the city refuses to do business with a company with whom it would otherwise have done so, then the city is going to lose money. The company made the city the best offer, but the city decides to pay more by contracting with someone else. So the city--and its taxpayers--will lose out, too. What is that supposed to accomplish?

Just asking. It was a 44-0 vote by the city council, so I'm sure someone has the answers. This couldn't have been political posturing by all 44, right? Or shouldn't I ask?

Appendix C:

Other Links of Interest

Peter H. Schuck, "Slavery Reparations: A Misguided Movement":

Walter E. Williams, "Proclamation of Amnesty and Pardon Granted to All Persons of European Descent":

David Horowitz, "Ten Reasons Why Reparations for Blacks Is a Bad Idea for Blacks--and Racist Too":

Linda Chavez, Chairman of the Center for Equal Opportunity (three syndicated columns):

Brown v. Board of Education …

Here’s the essay I just did this for National Review Online’s “Education Week”:

It’s depressing that, nearly six decades after Brown v. Board of Education, the legality and morality of racial discrimination in education continues to be a contested issue.

Consider: Last month the Obama administration issued “guidance” for universities on the meaning of the Supreme Court’s decision last June in Fisher v. University of Texas. The guidance predictably reiterates that the administration “strongly support[s] diversity” — including, of course, using discrimination in order to achieve it — but, as a legal matter, this is irrelevant if a school is sued, because whether in a particular case there are educational benefits stemming from such diversity is an educational judgment, not a political one.

The fact is that this “guidance” is designed not to help schools follow the law, but to push them to adopt dubious race-based policies that the Supreme Court has warned against and that have prompted lawsuits in the past, but that the Obama administration and its political allies stubbornly support. The whole tone of the new guidance is to offer encouragement to schools that want to engage in racial discrimination: The administration promises that it “will continue to be a resource” for such schools. It is as if the FBI offered eager encouragement to state and local police that wanted to engage in racial profiling without violating the law.

What’s worse, though, is that the guidance is probably telling many schools just what they want to hear: Study after study by the Center for Equal Opportunity has shown that universities across the country are only too happy to weigh race very heavily indeed in their admissions.

But, if they (and their lawyers) read the Fisher decision honestly, it ought to make them gulp and reconsider such discriminatory policies. And I should add that, in the run-up to the ruling, it became clear how increasingly unpopular and discredited racial preferences in admissions are, even among liberals who had once supported them. This ought to prompt some serious soul-searching among university presidents on whether “diversity” is really worth the price of racial discrimination.

In Fisher, the U.S. Supreme Court ruled that, before race can be used in university admissions, a university must give “serious, good faith consideration of workable race-neutral alternatives” to achieving the goals that are purportedly being achieved by weighing race in admissions decisions. The high court said that the lower court, on remand, “must assess whether the university has offered sufficient evidence that would prove that its admissions program is narrowly tailored to obtain the educational benefits of diversity.”

The Court also said that there must be “a careful judicial inquiry into whether a university could achieve sufficient diversity without using racial classifications.” And: “The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity.” A nondiscriminatory approach must be used if it “could promote the substantial interest about as well and at tolerable administrative expense.”

There is certainly enough in this language to justify an aggressive and thorough challenge to universities’ use of race in admissions, and so they should expect as much. Universities must now be able to document their consideration of alternatives to weighing race, including any reason for not adopting such alternatives.

A particular example would be documentation of how the educational benefits of considering race in admissions would be greater than the educational benefits of considering other, nonracial factors instead. How is education improved by using race, exactly — and how much, exactly, are those benefits of “diversity” enhanced by considering race in admissions, rather than nonracial characteristics that provide actual diversity in backgrounds, such as income or parents’ professions/educational level or geography or age or work experience or whatever? If a nonracial admissions system would achieve similar benefits and with fewer costs, then the consideration of race cannot be said to have been narrowly tailored to the achievement of those benefits.

More fundamentally, schools must now be able to document why and how race is considered in student admissions and must periodically review and rejustify those considerations. And they must be able to document not only (a) the anticipated benefits but also (b) the possible costs associated with the consideration of race in student admissions at the university — and especially, with regard to the latter, the relative academic performance of members of groups that have received such favorable consideration: That is, they must address the “mismatch” problem of “preferred” minorities being set up for academic underachievement or failure by being admitted into schools where their academic qualifications are significantly below those of the rest of their classmates.

As the Fisher litigation continues, meanwhile, Texans should ask the University of Texas’s president, Bill Powers, “Mr. Powers, just how much of the taxpayers’ money from the people of Texas are you willing to spend in litigation to justify your school’s racial discrimination against wrongly colored Texans?” The predicted expense is now above $1 million.

Three other quick points:

1. Litigation expenses and bad policy aside, the amounts spent — that is, wasted — on these diversity programs is appalling, as Manhattan Institute fellow and NRO contributor Heather Mac Donald has documented.

2. As legally and morally dubious as racial preferences are in student admissions, they are even less defensible in faculty hiring and promotion — yet they are equally ubiquitous, with the added problem that here sex rears its ugly head as well. A recent lawsuit filed by a white male administrator against the University of Florida is a good wakeup call for university officials, many of whom seem to think that, if race can be considered in student admissions, it can therefore also be considered in employment decisions. This is just not true. The statutes and the law are different in the two areas, and there is no plausible legal justification for universities to weigh race in making employment decisions in 2013. Here’s a recent discussion of why universities have no legal justification for racial/ethnic/gender preferences in employment.

3. A word with regard to K-12 education: It is appalling that the Justice Department is trying to use old school-desegregation orders to block Louisiana’s school-voucher program (as John Fund discussed in the NRO piece that really broke this story). But, as I wrote more than a decade ago, the underlying problem is often that school districts — for shortsighted political reasons — have been too complacent in leaving these old orders in place, and so they must bear some of the blame. There are still a couple of hundred of these court orders out there, and school districts — and federal judges, on their own initiative — ought to be proactive in removing the ones that are no longer necessary and in fulfilling any that have not yet been fulfilled, six decades after Brown.

Bad Times for New York Students

As the recent articles here and here discuss, the combination of the Obama administration and Mayor Bill de Blasio has proved toxic for safety and order in New York City public schools. On top of that, the New York Board of Regents announced last week that it was no longer going to require aspiring teachers there to pass a literacy test.

The reason for this madness is in both instances the same: the felt imperative of getting the numbers right, of getting rid of any standard that might have a “disparate impact” on the basis of race or ethnicity. If discipline standards and literacy requirements disqualify too many African Americans or Latinos, then those standards and requirements have to go.

The losers will be the decent students who must now deal with thuggish classmates and incompetent teachers. And we can’t really label “ironic” the fact that these students will themselves be disproportionately members of the poor and of minority groups, because it is so often the case that the victims of left-wing do-goodism are the poor and particularly the minority poor.

By the way, the Obama administration’s guidance letter on disparate impact and school discipline can be withdrawn anytime the Trump administration likes. Just a gentle suggestion.

*          *          *

Likewise, another recent article discussed efforts to ensure a politically correct racial balance in public schools in the assignment of students themselves.  My published response:

Measuring Diversity

The law should not make distinctions on the basis of race or ethnicity, and people should not either (“Data shows public schools are resegregating. Here’s why that’s a problem for the next generation,” March 9-16). That’s true whether the distinctions are made for old-fashioned, politically incorrect reasons, or now-fashionable, politically correct reasons.

Racial essentialism is a bad thing, and using race as a proxy for how people think or what experiences they have had is a bad thing, too. Treat people as individuals, and quit obsessing over skin color. It’s not that complicated or difficult, and it’s the only way forward as America becomes increasingly multiracial and multiethnic. 

*          *          *

Next, a couple of Federalist Society telefora/podcasts of note. 

The first is an interesting discussion of the role of the White House counsel between two former comrades-in-arms of mine from my days in the Justice Department:  Tim Flanigan and Boyden Gray.  It’s an important job, not least because of its role in judicial selection.  I called in with a question on this topic, which you can hear at the 0:25:20 mark.

The second teleforum/podcast, which you can listen to here, is a discussion between Joshua Thompson of Pacific Legal Foundation and me of a case I recently wrote about to you, Hardie v. NCAA

To recap:  The Ninth Circuit earlier this year heard oral argument in challenge to the NCAA’s policy of barring all convicted felons from coaching in NCAA-certified tournaments held for recruiting student-athletes to NCAA Division I schools. The policy is said to have a disparate impact on African Americans, and this is supposed to violate Title II of the 1964 Civil Rights Act, which bans “discrimination or segregation on the ground of race, color, religion, or national origin” in “places of public accommodation.”

Sigh. Putting aside why the NCAA having this rule is “public accommodations” discrimination covered by Title II in the first place, it would be absurd to construe this statute to allow “disparate impact” causes of action. Consider a hotel resort, which clearly would be covered: Are its rates, location (are a city’s hotel-zoning decisions to be challengeable, too, by the way, if they have a “disparate impact”?), menus, music, dancing, décor, and on and on to be challengeable because in some way one or the other is less accommodating, statistically speaking, to this group or that group on the basis of race, color, ethnicity, and religion? The disparate-impact approach is exceptionally unwieldy even in the areas where it has already been applied, as I discuss here (noting, among other things, that the Supreme Court’s most recent pronouncement in this area, while disappointing, was at least unanimous in recognizing the dangers with the disparate-impact approach), and there is no reason to make matters worse.

As a sidebar here, let me note that there is always a cost when the government tells private sector actors how to run their businesses.  When the government cannot even claim that it is doing so to prevent actual discrimination, that cost is prohibitive.  George Leef develops a similar theme here.

It’s telling that even the Obama administration, which was always very aggressive in using the disparate-impact approach, decided to sit this case out. No federal regulation interpreting Title II as including disparate-impact discrimination is cited by plaintiffs. Fun fact: The district judge in this case, who ruled correctly that Title II does not allow disparate-impact lawsuits, was Gonzalo Curiel — the Obama appointee you may remember as the Latino jurist that President Trump complained about.

Finally, bear in mind that the disparate-impact approach requires race-based decision-making rather than prohibiting it. That is, it means that a decisionmaker must be conscious of getting its racial, ethnic, and religion numbers right in order to avoid liability, rather than simply making decisions without regard to these things, which of course is what the civil-rights laws are supposed to be all about. Thus, the approach raises constitutional problems, as the late Justice Scalia noted. Accordingly, my organization joined an amicus brief filed by Pacific Legal Foundation, urging the court to adopt the principle of limiting the interpretation of civil-rights statutes to banning actual discrimination (disparate treatment) unless there is clear language in the statute to the contrary (which is conspicuously lacking here: A policy that is, as conceded in this case, neutral by its terms, in its intent, and in its application is not “discrimination or segregation [i.e., no “separate but equal” defense] on the ground of race” etc.).

Here’s hoping the Ninth Circuit agrees and puts paid to the notion that Title II can be used in this absurd way.

Discrimination Is Not the Issue

Fifty years after the passage of civil rights laws outlawing discrimination based on race, ethnicity and sex, blacks, Hispanics and women still earn less than white men. In many circles, this fact alone reinforces the belief that discrimination is widespread and only greater government intervention will solve the problem.


“Environmental Justice” and the Trump Administration

The “disparate impact” approach to civil-rights enforcement is bad policy in any area —employment, voting, housing, credit, school discipline, policing, pizza delivery (yes, it’s been applied there, too), you name it — but it is perhaps most bizarre in environmental law, where it’s labeled “environmental justice.” 

The approach in general considers it to be illegal discrimination if a practice has a statistically disproportionate racial effect, even if the challenged practice is neutral by its terms and in its intent, and is evenhandedly applied. So, for example, if a landlord prefers not to rent to people with a record of violent-crime convictions, he can be held liable if that policy results in a higher percentage of those of this race being disqualified than those of that race — even though he adopted it with no racial intent and applies it to all prospective tenants.

And in the environmental area, this means that the government tells an agribusiness, for example, “This pesticide that you are using is making children sick in a nearby neighborhood.  Now, we know that you don’t intend any racial discrimination, and we would be okay with children getting sick if the neighborhood were racially mixed, but the problem is that it is a heavily minority neighborhood.  Therefore, you must stop.”

As I said, that’s just bizarre. If the business were deliberately targeting minority neighborhoods, that would be different; and if the government said that making children sick in any neighborhood was illegal, that would make sense, too. But saying that the illegality depends on unintended racial outcomes does not. I testified on this a year ago before the U.S. Commission on Civil Rights.

So it’s good news that the Trump administration has announced that it wants to close the Environmental Protection Agency’s Office of Environmental Justice, and that its proposed budget starts the job by making cuts in the office’s budget and personnel. This has prompted the office’s head to announce his resignation last week, and that’s fine, too.

On the other hand, the Trump administration has also said that it still supports the idea of environmental justice, that this work will be done elsewhere at EPA, and indeed that last week it was launching an environmental justice investigation against the Hawaii Department of Agriculture and Agribusiness Development Corporation. All that’s too bad, and the administration needs to do some rethinking. 

One last note: The purported authority for the federal government’s “environmental justice” efforts is Title VI of the 1964 Civil Rights Act, which is also bizarre, since the Supreme Court has said that this statute contains no “disparate impact” ban. Thus, for federal agencies to use the disparate-impact approach under this statute is a classic example of regulatory overreach.  The approach is not only bad policy, but illegal.

*          *          *

Ironic but Illustrative – When Virginia governor Terry McAuliffe signed an executive order that automatically restored voting rights to felons last year, he also restored to them other civic rights, like running for state office. As a result, Nathan Larson — who in 2009 pled guilty to threatening to kill the U.S. president, leading to 16 months in prison and three years of supervised release — has now thrown his hat in the ring for election to the Virginia House of Delegates.

I think this case underscores why it makes perfect sense to take away certain rights from felons, at least until they have served their sentences in full and then shown they have turned over a new leaf by going some period of time without committing a new crime. If you won’t follow the law yourself, you can’t claim a right to make the law for everyone else.

Or look at it this way: We don’t let everyone vote, because there are certain minimum, objective standards — of responsibility, trustworthiness, and commitment to our laws — that we require of people before they can be entrusted with a role in the solemn enterprise of self-government. Children, noncitizens, the mentally incompetent, and those who have committed serious crimes against their fellow citizens don’t meet those standards.

The Left thinks that felons should be allowed to vote, and indeed the ultimate aim is for not only all released felons but all those still in prison to be able to vote. I was in a debate on this topic once when my opponent said he thought it was just wonderful that the assassin of Israeli prime minister Yitzhak Rabin would still be allowed to vote, from prison, in that country. That, I said, was crazy.

Automatically giving the right to vote and hold office back to a person who wanted to kill the president dramatizes the connection we ought to recognize between being civically responsible and having civic rights.

*          *          *

Victory in Guam – Last week a federal trial court in Guam ruled unconstitutional a proposed plebiscite in which only Chamorros (the native group indigenous to Guam) would have been allowed to vote. That’s the right decision, since such racial discrimination is banned by the 14th and 15th Amendments. Congratulations and kudos to Christian Adams, the Center for Individual Rights, and the law firm Gibson Dunn, all of whom had a hand in this important victory.  And, I should add, the Center for Equal Opportunity was in there as well.

By the way, you might have thought that the U.S. Department of Justice would have played some role in vindicating the voting rights at stake here, but you would have been wrong: The Obama administration stayed conspicuously on the sidelines. Here’s hoping that if there is an appeal from or outright resistance to last week’s court ruling — the governor of Guam has made some George Wallacesque pronouncements — the Trump administration will get in the game.