Center for Equal Opportunity

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


Last update07:18:57 AM

Back You are here: Home Other Issues

Other Issues

The President Needs to Focus

Donald Trump wants to have it both ways: He has had the most successful first 100 days as president in the history of the republic (or at least since FDR, depending on which day he makes the claim); or the 100-day standard is more media-concocted fake news, and we shouldn't even be looking at it.

In fact, the 100-day test is mostly meaningless, but that doesn't mean that we don't have some sense at this point about the way President Trump governs, and on that score, the results are decidedly mixed.

Trump made a ridiculous number of specific promises during the campaign about what he'd do on "Day One," most of which didn't happen -- thankfully. He didn't withdraw from the North American Free Trade Agreement (though he has given notice that he wants to renegotiate the terms of the 23-year-old treaty). He didn't label China a currency manipulator -- and given his need for China's help in reining in Kim Jong Un, he's not likely to anytime soon. He also promised to repeal every one of Barack Obama's executive orders, repeal Obamacare and start building the wall on our southern border. He's repealed some Obama-era regulations, but many are still in place, and he's still working on health care and the wall. President Trump has already admitted health care is a lot more complicated than he imagined, and even hard-line Republicans show little appetite for building a wall that could cost upward of $20 billion.

So how should we score Trump's record? I'd give him a gentleman's C for effort but a D-minus overall. He's thrown a lot of balls up in the air, but some have come back to smash the administration in the face. His executive orders for a travel ban from certain countries were not only poorly written (especially the first attempt) but also will never survive the bigoted remarks made by the president and some of his surrogates in the campaign. No matter what words Trump puts into the executive order, everyone -- including the judges who must weigh whether the orders violate the constitutional prohibition against religious tests -- know that the intent was to ban Muslims, because he said so repeatedly.

But the bigger problem is that the president has tried to do too much, with too little focus and with inexperienced and, in some cases, insufficient staff. Watching this administration is like trying to keep your eyes on the dime hidden beneath the walnut shell as the manipulator moves it around the table faster than you can follow. From one day to the next, you never know what the administration's priorities are and what will occupy its time in the coming weeks. First, it's a travel ban; then it's health care; then it's trade, energy and tax reform. And that isn't even counting defense objectives or foreign policy, which aren't necessarily under the president's total control, given that characters such as Bashar Assad and Kim Jong Un are in the mix.

I'd like to give the president credit for bombing ISIS in Afghanistan and sending cruise missiles to a Syrian base used to launch chemical attacks on innocent civilians, but I'd feel better if I thought this were part of some grand strategy meant to demonstrate U.S. strength, resolve and commitment to leadership in the world. Maybe it is, but the president's own words suggest he wants America less involved in the world and more focused on what goes on at home. Frankly, we just don't know what he believes, beyond the anodyne "Make America Great Again" slogans. He's asked for a massive buildup in our defenses -- a good thing, in my opinion -- but we have no clear sense of how and when he'll use force. He can't simply make it up as he goes along, though that seems to be what he's done so far.

Perhaps the most troublesome parts of the president's rocky start, however, have been matters of incompetency and mismanagement. In electing a billionaire businessman, most Americans believed they were getting someone who knew how to get things done.

But the White House is a mess of dysfunctional infighting among individuals who, in some important instances, have no experience in the fields they oversee. The president picked some (though by no means all) impressive Cabinet members, but the administration has been painfully slow in filling thousands of political jobs at the agency level where things actually get done.

If the president wants a better grade by the end of his first year, he could start by picking two or three priorities, and then focus all his and the administration's attention on getting them done. Health care and taxes are clearly the top two. Frankly, if he accomplished either one this year, he'd make the honor roll. But like a kid with ADHD, Donald Trump seems incapable of setting priorities and sticking to them, and until he does, he'll struggle in his role.

Stop the Balkanization

Last fall I wrote about some disturbing changes that the Obama administration wanted to make in the data gathered for the Census. A short 30-day window was given for public comments, but thankfully the Trump administration seems to have misgivings about the proposed changes. And so it has asked for more public comments (via the White House website no less), and extended the deadline to the end of this month.

Mike Gonzalez of the Heritage Foundation has done yeoman’s work on this matter. I quoted his “Issue Brief” last fall: “The two most significant proposals [are] creating a new ethno/racial group for people who originate from the Middle East and North Africa (MENA) and taking from those who identify as Hispanic the option to identify their race.” In the introductory part of the formal comment he has now submitted, he explains:

The proposals would affect our nation adversely in at least three ways: (1) adding one more ethnic group [i.e., MENA] would further sub-divide America along ethnic lines and take another step to transform the U.S. into what the Founders never intended, a nation of groups; (2) creating a Hispanic race would deepen these fractures and threaten to make them permanent; and (3) dangling purported advantages such as congressional redistricting would further help perpetuate divisions within the country by giving people an incentive to identify themselves as a member of a subnational group and a disincentive to build inter-ethnic coalitions.

The Center for Equal Opportunity has endorsed Mike’s comment, adding:

[I]n addition to the problems associated with congressional redistricting, the balkanization and encouragement of race-based decisionmaking inherent in the Census proposal [are] also bad with regard to the Voting Rights Act generally, and with respect to broadened “affirmative action” (i.e., preferential treatment on the basis of race), race-based student assignments at the K-12 level, and the “disparate impact” approach to civil-rights enforcement.

Comments are due by April 30, which is a Sunday, so better to send them in by the preceding Friday, April 28. I would encourage interested individuals and groups to go to this link , click on “Comment Now!” in the right-hand column, endorse Mr. Gonzalez’s comment, and make whatever additional points they’d like.

By the way, I’ve noted before that Mike and I recorded a Federalist Society teleforum/podcast on this issue, which you can listen to here.

*          *          *

Racial Preferences and the Department of Education – Some folks on the Left seem to think it is outrageous that the new acting head of the Department of Education’s Office for Civil Rights has criticized the use of racial preferences by universities, a.k.a. affirmative action.  But what would be outrageous would be if the Trump administration were to put someone into this job who did notcriticize such preferences. 

Yes, the Supreme Court has, alas, for now ruled that such discrimination is permissible in limited circumstances, but the head of OCR should be someone who will indeed insist that this discrimination be limited, and who will work with the Justice Department for the eventual ban — by the Court or by the political branches — on politically correct racial discrimination in public and other taxpayer-supported universities. 

*          *          *

Hans Bader, a senior attorney at the Competitive Enterprise Institute and an invaluable ally of the Center for Equal Opportunity, posted this week an excellent article that praises some recent work by CEO:

Legal Reformers Call for Repeal of Race-Based School Discipline Guidance

Two legal foundations are calling for an end to federal pressure on school districts to adopt racial quotas in suspensions. And rightly so: It is wrong for an agency to pressure regulated entities to adopt racial quotas, or make race-based decisions, even if the pressure does not inexorably lead to a quota.  (See Lutheran Church—Missouri Synod v. FCC, 141 F.3d 344 (D.C. Cir. 1998)). I earlier discussed at length how Obama-era rules, issued without notice and comment in 2014, pressured school districts to adopt racial quotas in suspensions, which violated the Constitution; misinterpreted Title VI of the Civil Rights Act; and ignored judicially-recognized limits on disparate-impact liability.

On March 29, Roger Clegg, president and general counsel of the Center for Equal Opportunity, sent an email to the Justice Department asking the Trump administration to withdraw these rules, which are contained in the Obama administration’s January 8, 2014 letter to America’s schools, known as the “Dear Colleague letter: Racial Disparities In The Administration Of School Discipline.” Clegg urged “the withdrawal of the January 8, 2014 ‘Dear Colleague’ letter,” which was issued by the Obama Justice Department’s Civil Rights Division and the Education Department’s Office for Civil Rights. He called this letter “unsound as a matter of both law and policy,” citing “a variety of sources that have criticized the letter, again from both policy and legal perspectives.” Clegg is a former Deputy Assistant Attorney General in the Civil Rights Division, where he served from 1987-1991.

On April 3, the veteran constitutional lawyer who heads the Mountain States Legal Foundation, William Perry Pendley, sent a letter requesting the rules’ repeal. …

Pendley cited the harm caused by the Obama administration’s pressure in places such as Oklahoma City, where the school district entered into a settlement with the Obama administration designed to lower minority suspension rates. The resulting curbs on suspensions have apparently resulted in more fighting and classroom disorder. Quoting The Wall Street Journal, Pendley noted that a teacher in Oklahoma City said that referrals to the principal’s office “‘would not require suspension unless there was blood.’”

The accompanying April 4 press release from Mountain States Legal Foundation notes:…

Jason Riley, in an op-ed entitled, “An Obama Decree Continues to Make Public Schools Lawless,” Wall Street Journal, March 22, 2017, at A19, questions why, two months into the Trump administration, the “Dear Colleague” letter is still official policy.  Referencing a newly released study (“School Discipline Reform and Disorder:  Evidence from New York City Public schools, 2012-2016,” by Max Eden, Manhattan Institute, March 14, 2017), he notes that more than half of the nation’s 50 largest school districts have reduced suspensions “to the dismay of those on the front lines.”…

Unlike some other civil rights statutes, Title VI does not itself ban “disparate impact,” as the Supreme Court made clear in its 2001 decision in Alexander v. Sandoval. The Obama administration argues that even if the Title VI statute itself does not reach disparate impact, regulations under it can and do (an idea that the Supreme Court characterized as “strange” in footnote 6 of its Sandoval ruling).  But even if Title VI disparate-impact regulations were generally valid, they would be subordinate to, and could not override, the Title VI statute itself, which bans racial quotas, as does the Constitution’s equal-protection guarantees.  (See, e.g., People Who Care v. Rockford Board of Education, 111 F.3d 528, 538 (7th Cir. 1997) (striking down as unconstitutional a provision that forbade a “school district to refer a higher percentage of minority students than of white students for discipline unless the district purges all ‘subjective’ criteria from its disciplinary code,” because that constituted a forbidden racial quota)).
Even if disparate-impact liability applied under Title VI, the Obama-era guidance fails to take into account non-racial factors (such as poverty and coming from a single-parent household) in determining whether a meaningful disparity exists to begin with, as courts require (and as I previously explained.)

*          *          *
I should also note that Jason Riley, quoted above, is on the Center for Equal Opportunity’s board of directors.

No to “Racial Impact Statements”

The Federalist Society blogsite has an interesting post by James Scanlan on proposed legislation in New Jersey that would require racial and ethnic impact statements for any legislative measure that affects pretrial detention, sentencing, probation, or parole policies. Mr. Scanlan notes that racial-impact-statement laws have already, alas, been enacted in Connecticut, Iowa, and Oregon and that similar legislation has recently been introduced in Arkansas, Florida, Mississippi, and Wisconsin; and, what’s more, frequently the legislation addresses not just post-arrest and conviction policies, but what is made criminal in the first place.

Mr. Scanlan does a wonderful job of pointing out how this law is methodologically flawed and practically unworkable, and I’d like to elaborate briefly on why the whole approach is bad policy and probably unconstitutional as well.

There are, for starters, no laws that don’t have a disparate impact on some racial or ethnic group — tax laws, antitrust laws, environmental laws, criminal laws, you name it. In the criminal context, this is because human beings don’t commit crimes in the same exact proportion that their particular racial or ethnic group is to the general population, and indeed those proportions change over time.

And what is the government supposed to do with this information, anyway? What it should do, of course, is ignore it: Criminal laws should be written without regard to race, and let the chips fall where they may. It is disturbing to contemplate a legislature carefully crafting a law with an eye on racial and ethnic outcomes; such race-based decisionmaking is precisely what the Constitution enjoins, and its presence will only encourage lawsuits.

But obviously there is an expectation here that the disparities will be addressed and, in some way, diminished. There are two ways that this might be done, both bad.

The first is not to make some type of behavior illegal that should be illegal because it is dangerous or in some other way bad for the community. This will be unfortunate for the public generally, and especially for those who live in the area where the activity is going on — most often, poor urban areas with high crime rates. But as is often the case, the Left appears more concerned with the race of the perpetrator than it is with the race of his or her victims, even though they are usually the same.

The second way to deal with a predicted disparity is to tweak the law so that more white (or, likely, Asian American) people are arrested, too. That’s probably not what the ACLU has in mind, but one could see an effort to bundle together two bills so that there is racial “balance”: the original one that had a disparate impact on blacks, say, and a second one written not because it is really needed but so that it has a disparate impact on whites. So, for example, a bill that increased penalties for some of the types of street crime that happen in poor, inner-city neighborhoods would be combined with a bill that increased penalties for some types of white-collar crime.

The next white-collar criminal prosecuted under that law would then have a ready-made challenge, namely that the law being applied to him was passed with racially discriminatory intent. That’s unconstitutional.

According to the crime statistics amassed by the FBI for 2015, it is an unfortunate, and politically incorrect, fact that African Americans commit crimes at a greater rate than other racial and ethnic groups including Asian Americans, whites, and Hispanics. But the reason for this is that too many African Americans grow up in homes without a father and live in broken and dysfunctional communities; and those problems will not be solved, and indeed will be exacerbated, by the Left’s ignoring and excusing this reality and instead insisting that any disparity is due to “institutional racism” in our criminal justice system.

*          *          *

Don’t Be Defensive about Opposing “Diversity” Discrimination – There was an article in the Washington Post Friday about the Trump administration ending an Obama-era grant program that would encourage local districts to devise ways to increase “diversity” in their schools. The administration was at pains to say that this was about the wise use of tax dollars, and says nothing about the administration’s interest in diversity. Secretary of Education Betsy DeVos was even quoted as saying that she believes socioeconomic and racial diversity is “a real benefit in schools.”

The educational benefits of racial diversity in public schools — learning more and better because the kid sitting next to you has this color rather than that color — is disputed, and of course the question is whether those disputed and marginal benefits justify local governments classifying and differentiating among children on the basis of race in order to achieve politically correct bean-counting results, and whether the federal government of all things ought to be encouraging local schools to engage in such race-based decisionmaking. The answer is no, and it is doubtful that the Education Department has constitutional or even statutory authority to do so.

So, to the extent that the program involved racial diversity-mongering, I’m glad that the program is being ended, but unhappy that the Trump administration is so defensive about it. It shouldn’t be.

*          *          *

“Vet Hiring Preference Hinders Police Diversity” – Yes, that’s the complaint in this USA Today article: There are too many white males applying to work for the Boston Police Department who get a hiring preference because of the fact that they served in the military. This is making it harder for the police chief there to hire more blacks and Latinos, and so he is attempting “to circumvent the state’s pro-veteran hiring preferences.”

Well, there you go. Either this article makes you throw your newspaper across the room in disgust or it doesn’t.

It’s hard for me to believe that it is irrational or unfair to give a preference to veterans when hiring police officers. But whether it is a good idea or a bad idea should not hinge on their skin color.

No to a Deportation Force

President Donald Trump has been flip-flopping right and left recently -- much of it for the good. He's abandoned his promises to label China a currency manipulator, withdraw from NAFTA, repeal Obamacare and stay out of Syria. But he seems to be digging in on his pledge to create a deportation force to rid the country of people who are illegally here. A decision memo leaked this week to The Washington Post outlines the administration's plans to hire new Customs and Border Protection officers quickly by abandoning the usual safeguards, such as polygraphs and physical fitness tests, in some instances and deploying local police to enforce immigration laws through agreements with dozens of cooperative police departments. The memo also says that the Department of Homeland Security has found some 33,000 beds to supplement its detention facilities.

If ever a policy deserved reversing, this is it. But will Trump have the courage to change course? Immigration hard-liners in and out of the administration are counting on an anti-immigrant backlash to stiffen the president's resolve, but when the roundups start, a far different backlash is likely to occur. The majority of undocumented immigrants in the U.S. have lived among us for more than a decade, are in families that include American citizens, work at jobs that are vital to the economy, pay taxes and spend their incomes in communities, which depend on their contributions. The idea that we can round up 11 million people -- or even a fraction of that number -- without harming American citizens is a pipe dream.

Just ask the people of Utah. In his engaging new book, "There Goes the Neighborhood: How Communities Overcome Prejudice and Meet the Challenge of American Immigration," Ali Noorani describes what happened in that conservative state when some local immigration vigilantes tried to drive out undocumented immigrants from their community. Noorani, who heads the National Immigration Forum, quotes an article from the Deseret News on July 13, 2010: "An anonymous group says it quietly watched Hispanics in their neighborhoods, schools, churches and 'public welfare buildings' to compile a list of 1,300 people it says are illegal immigrants living in Utah. The group sent the list to law enforcement agencies and news media demanding that those named 'be deported immediately.'" But instead, the incident sparked the coming together of an unlikely coalition of ordinary citizens, business leaders, churches and law enforcement officials to push back against the vigilantes. What emerged was the "Utah Compact," which supports national immigration reform, urges law enforcement to concentrate on criminal violations and not enforce civil violations of immigration law, and supports free market principles that maximize individual freedom and opportunity.

Undocumented immigrants make up about 6 percent of the U.S. workforce. Deporting that many workers would deal a blow to the U.S. economy that could well send the country into recession. One of the great ironies of the Trump immigration policy is that it directly contradicts his promise to try to keep jobs in the United States. What happens when farmers can't find people to pick their crops? Or when small towns that depend on immigrants' spending power suddenly find apartments empty and stores without customers? And what about those American industries that have managed to keep jobs in auto parts, textiles and meat processing in the U.S. because of affordable immigrant labor? Take away the access to competitively priced labor and the jobs disappear -- or the American consumer gets stuck with the bill.

Noorani does a masterful job of describing how communities have learned to value the contribution of immigrants and to resist demands to round up undocumented immigrants and instead seek a real-world solution to the problem. A handful of zealots may think it's a great idea to stake out churches and schools to find "illegals," but most Americans aren't willing to see parents separated from their children, to lose co-workers and neighbors, or to pay the taxes necessary to house tens of thousands of people in detention facilities for the months or years it takes to deport them.

President Trump could do the country and himself a favor by saying "no" to a deportation force and concentrating instead on finding a way to fix our outdated immigration system. As Ali Noorani's book demonstrates loud and clear, how we treat the strangers among us says much about who we are as a nation and a people.

The Great American Divide

If you keep your eyes focused on Washington, D.C., you might think the great divide in America is partisan. I admit: I'm often guilty of doing just that, even though I live 1,500 miles outside the Beltway. But the more disturbing divide that is ripping the nation apart is a cultural one, complicated by economics and education.

I grew up in a working-class family with a father who had a ninth-grade education and was often unemployed, and a mother who worked in restaurants and retail. I escaped that world thanks to education -- in part funded by federal grants, loans and work-study jobs. But many of my extended family members did not. When I read about the opioid epidemic, the chronically unemployed, and the explosion in disability programs and food stamps, I recognize the stories because I've seen them play out personally. I've lost in-laws and relatives to drug overdoses and alcohol abuse. Some of my family members live hand to mouth, dependent on disability payments, Medicaid and food stamps. I look at them and say, "There but for the grace of God." But I also wonder why things are so different from when I was growing up in conditions that could have led to the same outcome.

Some 15 million people in the U.S. receive disability payments. A new analysis of Social Security Administration data by the Washington Post reveals that in some of the 136 counties with the highest rates of disability use across the country, almost all of them rural with a white majority, more than 1 in 6 working-age adults receive federal disability payments. Once on disability, the Post points out, recipients rarely get off the program. By and large, these are not individuals who fell off a roof and broke their back or lost limbs in an industrial accident. They suffer from back pain or diabetes or emphysema or liver cirrhosis or some other lifestyle-induced ailment that makes full-time work difficult. But, perhaps more importantly, they live in communities where job opportunities are few, especially for those who don't have a college education.

But disability programs are just a fraction of the government's assistance programs. A 2015 study by the U.S. Census Bureau showed that 52.2 million people, or roughly 1 in 5 Americans, received help in 2012 (the last year for which comprehensive statistics are available) from one of six means-tested programs. And, of course, this doesn't count Social Security or Medicare, which pays out to individuals on average far more over their lifetimes than they contributed in taxes. We have become a nation that is increasingly dependent on government assistance, and it is having a profound effect on our lives and our politics.

When I read these statistics, I can't help but wonder what would have happened if I were growing up now in the same circumstances I experienced as a child. I would have had better health care -- I never went to a dentist until I was 21 and didn't receive any immunizations until fourth grade, and only then because the new school I attended that year (my sixth one) wouldn't allow me to enroll without them. But if my father were living today, he might well have been prescribed opioids for his chronic pain from injuries sustained in a wartime plane crash. He was an intermittent alcoholic, so I hate to think how that would have turned out. And so might my mother, who spent six months in a body cast after a devastating car accident and yet had to wear high heels to work afterward, despite the pain from a large screw that held her ankle together.

Would they have quit their jobs and gone on disability? And would they have even stayed together? I knew only a couple of kids from what we called "broken homes" in those days, but my parents' relationship was tumultuous at best and might have dissolved if the social pressure to stay together were as weak as it is now. We might also have been tempted to live in subsidized housing. Instead, we lived in cheap apartments, and the rent was partially covered by my father's handyman work. We may have had to share bathrooms with other families and move frequently, but we always lived among self-reliant working people. No one stayed home drinking and smoking and watching TV all day.

The world I came from and the one I live in now are separated by a deep chasm. Unfortunately, those stuck on the wrong side of that divide can't see how they will ever leap over, and many on the successful side don't even know the other world exists. Until we figure out how to bridge that gap, we will remain a divided country.

Odds & Ends

Here’s a sample of what the Center for Equal Opportunity has been up to in recent weeks.

  • We have weighed in against racial preferences in government contracting with the following cities and counties:  Decatur, Illinois; Leon County, Florida; Guilford County, North Carolina; Asheville, North Carolina; and Fayetteville, North Carolina.  Here’s some typical language:

It's good to make sure 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. 

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 it's almost always illegal—indeed, unconstitutional—to boot (see 42 U.S.C. section 1981 and this model brief

Those who insist on engaging in such discrimination deserve to be sued, and they will lose.

  • We weren’t delighted with all aspects of the Supreme Court’s recent decision in Bethune-Hill v. Virginia State Board of Elections, in which the Center for Equal Opportunity joined and helped write an amicus brief.  But there does seem to be progress against the use of race in redistricting, whichever party is using it and whatever its motives.  So for that we can be thankful.  And here’s hoping that Justice Gorsuch will accelerate that progress.
  • In an earlier email, I mentioned that soon after she was sworn in, the Center for Equal Opportunity sent a letter to Secretary of Education Betsy DeVos about some of our policy concerns. 

From the other side of the aisle, the liberal Leadership Conference on Civil Rights has now also sent her a letter, in which among other things it complains about when students are “suspended and arrested for school-related incidents for infractions as minor as disrespect or defiance of authority.” 

That’s great timing, given the appalling events at Middlebury College recently when Charles Murray visited there.  And, really, the “defiance of authority” is no big deal in school?  Sheesh. 

That letter is also ironic in that it urges Secretary DeVos to allow “interest groups on all sides of an issue to weigh in before developing policy guidance and be fully committed to the transparent operation of the office” — ironic, that is, in light of the fact that these same groups endorsed all the Obama-era “Dear Colleague” letters (on “disparate impact” and school discipline, the use of racial preferences at all levels of education, transgender bathroom policy, etc.) that were issued without any opportunity for notice and comment.

  • I should note that we met recently with the new chair of the Equal Employment Opportunity Commission, and plan to have meetings with other Trump administration civil-rights officials as they take office.
  • The Center for Equal Opportunity is, of course, a longtime opponent of the use of racial preferences in university admissions.  In that regard, we would like to put this essay by Professor Peter Schuck on our supporters’ reading lists.
  • Here are a couple of Federalist Society telefora/podcasts in which I participated: 

The first one, here, features a discussion by Judge J. Harvie Wilkinson of his recently published memoir.  Judge Wilkinson and I were comrades-in-arms at the Justice Department during the Reagan administration, especially on civil-rights issues (in fact, I ended up occupying the office, literally, he left in the Civil Rights Division when he was appointed to the judiciary).  You can hear me come in at the 0:56:15 mark.

The second one, here, is about a case whether it can be argued that there is an illegal “disparate impact” on the basis of age when companies focus there interviewing for certain jobs on college campuses.  Sheesh (again).  I come in on this one at the 0:42:40 mark, making the point that the time is long past due to get rid of the disparate-impact approach to civil-rights enforcement altogether — and that the executive branch can do this unilaterally with respect to many regulations, and that Congress should clarify and/or change the relevant statutes.

  • Here’s my response to a recent article in Corporate Counsel magazine:

Re “Diversity Discourse” (April 2017):  It’s amazing that in this entire article there is not one single word about the legal issues that might arise from a company pressuring its outside counsel to make staffing decisions based on race, ethnicity, and sex, nor is there one single word in the entire article about what justification there is — as a matter of law or policy — to justify such race-, ethnicity-, and sex-based staffing.  Just amazing.
Legal departments and law firms really ought to follow the law, and it violates Title VII of the 1964 Civil Rights Act and 42 U.S.C. section 1981 to engage in workplace discrimination on the basis of race, ethnicity, and sex (see here and here, appendix B).  Even if it weren’t illegal, it is wrong to treat its lawyers differently because of their skin color or what country their ancestors came from or what kind of reproductive organs they have.

Corporate Counsel should have at least mentioned these issues rather than run a totally one-sided puff piece.   Your readers deserve better.

I also emailed the general counsel of one of the companies featured in the article, making similar points.

  • Here’s my short response to another recent article about racial preferences in university admissions:

There’s nothing wrong with trying to have intellectual diversity, so long as you don’t lower standards very much to achieve it. But you shouldn’t use skin color as a proxy for intellectual diversity; what’s more, the proponents of racial preferences are perfectly happy to lower standards quite a bit in order to achieve skin-color diversity.

  • One last thought:  There was a letter to the editor of the New York Times this week about how much more effective historically black colleges have been at actually graduating black undergraduates.  The author attributed this all to how “welcoming” and “supportive” the schools are, compared with nonblack colleges. 

But I think a better explanation is because black schools do not give black applicants preferences in admission on the basis of race — and so there is no “mismatch” problem there.

Hyperpartisanship Is Hurting the Country

Hyperpartisanship is destroying American politics. The announcement this week that Democrats will filibuster Supreme Court nominee Judge Neil Gorsuch -- who is eminently qualified -- puts them on a dangerous collision course that jeopardizes the confirmation process itself. Similarly, Republicans' willingness to pass a major overhaul of the health care system without a single Democrat vote follows in the disgraceful path set when President Obama shoved the Affordable Care Act down the country's throat without a single Republican vote. As of this writing, it is unclear whether there are even enough Republican votes in the House to pass health reform, despite their 44-seat majority, but the point remains: In an already polarized country, partisans on both sides of the aisle are doing more harm than good.

The same applies to Congress's oversight responsibility. The week began with testimony before the House Permanent Select Committee on Intelligence by FBI Director James Comey and National Security Agency Director Adm. Michael Rogers. The testimony was the first open hearing on the government's investigation into meddling by the Russians in last year's election. But instead of focusing on something Republicans and Democrats -- indeed, all Americans -- should be deeply concerned with, the hearings turned into a referendum on whether President Trump was truthful when he tweeted almost three weeks ago that former President Obama was secretly spying on him just before the election.

Republicans spent much of their precious time in the hearings making the case that Russia's involvement in the election was not nearly as important as who leaked information regarding that involvement. The chief objects of Republican wrath were suspected Obama appointees. Republicans seemed especially exercised about individuals whose leaks revealed disgraced former Trump national security adviser Michael Flynn's contacts with the Russian ambassador to the U.S. I, for one, will shed no crocodile tears over Flynn's firing. The man lied to the vice president and, it turns out, was also a paid foreign agent of the Islamist government of Turkey's President Recyip Erdogan at the same time he was serving as candidate Trump's top security adviser.

Democrats' behavior was little better during the hearings. Their main focus was on whether President Trump lied in his ridiculous early-morning tweets accusing President Obama of spying on him. The tweets were fact-free; no one, including the president, has produced evidence otherwise. But Democrats -- and the country -- would be better off focusing on Russian meddling, not refuting baseless claims. Exactly how do you prove something didn't happen anyway? The outcome of the hearing was simply a hardening of views among partisans. We are no closer to understanding how extensive the Russians' involvement was, what exactly it consisted of and how they managed to carry it out, including who might have assisted them wittingly or unwittingly.

There are large differences in philosophy and policy between Democrats and Republicans. Those differences are important, and national elections reflect voters' preferences. But barring a major landslide, which the last election certainly was not, enacting laws requires negotiations and, yes, compromise. The pendulum rarely shifts dramatically in a single election. And prudence suggests that's a good thing. From 1960 to 1980, the country shifted mostly left, with the exception of the Nixon years, which were a mixed bag. President Nixon gave the country racial quotas, the Environmental Protection Agency, and wage and price controls -- hardly a far-right agenda. From 1980 to 2012, the country moved to the center-right, including during the Clinton years. Congress passed, and President Clinton signed, both welfare reform and the Religious Freedom Restoration Act during his tenure.

But things shifted dramatically during the Obama years. It wasn't just that policy veered sharply left but that Democrats and Republicans in Congress quit seeking compromise on highly divisive issues. Even when a few Democrat and Republican senators tried to forge bipartisan legislation on contentious issues like immigration, the hyperpartisans in their respective parties sunk the bills.

What began under Obama has now metastasized under Trump. If this keeps up, we can look to four years of stalemate or, perhaps worse, legislation so out of step with a mostly centrist country that it will be rebuked by whoever succeeds Trump in office. Neither party benefits long term in that scenario. Worse, Americans lose -- big league, as the president likes to say.

End of Filibuster Not Good for Either Party

Back when I was a young staffer in the House of Representatives, we viewed the Senate with some disdain. Senators -- and more so their staffs -- were imperious. They viewed themselves as being in the higher chamber and employed arcane rules, most notoriously the filibuster, to block actions they didn't like. But I've learned a thing or two in the more than 40 years since I left my job on the House Judiciary Committee, and I've changed my mind about those Senate rules. Sometimes we need a brake, judiciously applied, to give politicians and the country the time to come together.

I was still in high school when Democrats filibustered the 1964 Civil Rights Act for 60 days, but I remember it as an ugly affair that nonetheless couldn't stop the U.S. Senate from doing what was right. In the end, the Senate mustered the votes of two-thirds of the chamber to move the landmark bill forward, but not before Sens. Robert Byrd, Strom Thurmond, Sam Ervin, Richard Russell and William Fulbright (some of whom later became liberal icons for other reasons) talked around the clock to try to kill the legislation.

As grueling as the process was, it forced debate -- and, yes, that dirty word compromise -- to enact legislation that dramatically altered the course of the country. Had liberal Democrats and Republicans who favored civil rights forced through a bill on 51 votes, the nation might never have fully embraced the changes enacted. The Supreme Court had outlawed segregation in schools in 1954, but the pace of change took decades to accomplish, in part because nine justices, even though girded by the Constitution, couldn't force the social change required. With 71 elected senators embracing the new law, the people had an easier time accepting the historic legislation. Sen. Everett Dirksen -- a Republican who helped secure passage, with larger numbers of his fellow Republicans than Democrats voting in favor -- said it best during the debate: "Stronger than all the armies is an idea whose time has come."

Much has changed since that historic day, not least of all the willingness of partisans on opposite sides to work together. The Senate changed its rule in 1975, lowering to 60 the number of votes needed to end a filibuster. On Thursday, the GOP-controlled Senate changed the rules once again -- this time disallowing a filibuster on Supreme Court nominees altogether, following the precedent set when the Democrats were in control and blocked filibusters for lower-court nominees. I am happy that the eminently qualified Neil Gorsuch will become a Supreme Court justice because of the change, but I'm troubled about what the rule change means for the future of politics in America.

Already we've seen Democrats pass the biggest piece of social legislation in 50 years on a simple party-line vote, the Affordable Care Act, by manipulating the rules that allow certain kinds of legislation to be exempt from filibuster. We're likely to see the same maneuvers if and when the GOP gets its act together to "repeal and replace" Obamacare. And of course, the Democrats' putting in place the rule allowing lower-court judges to be confirmed with less than a supermajority when the Senate was in Democratic hands means the federal courts have already become highly politicized and promise to be more so going forward. This is not a good thing, no matter which party is in control.

Ours has been a remarkably stable democracy, with control of Congress and the White House shifting back and forth election to election but the judiciary less susceptible to such swings. That was how our Founding Fathers intended it; why else make federal judges lifetime appointees? Presidents have wide latitude in making such appointments, and there's no question that judicial philosophy plays a role in whom a president chooses. But in the past, the tempering force of the old Senate rules meant few presidents risked putting forth a nominee who was outside the mainstream. President Donald Trump's nomination of Neil Gorsuch was in that tradition; Gorsuch is a mainstream judge. But Democrats, angry with Trump on a host of issues, chose to dig in their heels -- and Senate Republicans followed the Democrats' example by blowing up the remnants of the old rules.

Political majorities don't last forever, and I'm betting those on both sides of the aisle will have ample opportunity in the future to rue the day they started down this path. I'm welcoming Justice Gorsuch but saying a sorry farewell to a tradition that has helped forge consensus at difficult times.

No Free Lunch in the Health Care System

The health care reform bill that has now passed two committee hurdles in the House still faces an uphill battle to become law. Many tea party Republicans have already said they won't vote for a bill they call Obamacare Lite, and it is likely that very few, if any, Democrats will cross over to support the GOP bill on the floor. But President Donald Trump says he will do what it takes to get the legislation passed, though it is unclear exactly what that means. The biggest problem, however, is not Republicans breaking ranks but the fact that despite Obamacare's many flaws, Americans now feel entitled to guaranteed health insurance but don't necessarily want to pay for it. Something has to give.

Anyone who believed that we could expand health care coverage to more people, insist that those with pre-existing conditions be covered, mandate that more procedures be paid for by insurance and impose one-size-fits-all policies for the young and healthy and for the elderly and sick and not see premiums explode doesn't understand basic economics. Insurance, by its nature, is about shared risk. When a driver goes to buy auto insurance, his driving record, age, sex, type of vehicle and location are all factors in determining his premium. A 16-year-old boy with a new BMW living in New York City is going to pay higher premiums than a 40-year-old woman living in Sioux City who drives a Volvo and has never had a speeding ticket. What's more, the premiums also depend on what kind of coverage you want. Do you want to be covered for damage to the vehicle or just liability in case you or someone else gets hurt in an accident? And what deductibles are you willing to absorb? No auto insurance policy I know of offers maintenance as part of the package, either; you pay out of pocket for oil changes, brakes, tires, tuneups, etc. The same theories apply to homeowners insurance. You pick how much coverage you want and what deductibles you are willing to pay, and your premiums are based on these factors, as well as where you happen to live.

But Americans have gotten used to the idea that health insurance should operate differently than all other forms of pooled-risk insurance. Going back to World War II, when unions successfully sold the idea that employers should pay for health insurance to circumvent wage-price controls in effect during the war, which limited their ability to bargain for higher wages, most Americans started receiving insurance through their employers. They also got this benefit tax-free. This third-party payment disrupted the feedback loop that is necessary for markets to operate efficiently. We haven't had a free market system in health care ever since -- and Obamacare made it much worse.

Some of what the House Republicans' plan attempts to do is to restore at least some free market opportunities to the system. If the plan were to be successful, over time, this might have some effect on driving down the price of health care. By giving people a choice about what kind of insurance they wish to buy -- including catastrophic plans for the young and healthy, which make the most sense for this cohort -- and including stiff penalties for purchasing insurance if an individual has allowed previous coverage to lapse, the House bill reintroduces some market discipline.

The House bill is by no means perfect, but it is at least a beginning. Would some people end up paying more for their insurance under this plan? Yes, but the choice would be theirs. Others could find cheaper plans that better suit their needs; they want to be covered if they get cancer or some other life-threatening disease or have an accident but are willing to pay out of pocket for routine visits for a common cold. And it is only fair that older Americans -- who consume far costlier treatments -- pay more for their premiums, as should smokers, heavy drinkers and overweight people.

The working poor and those below the poverty line will need subsidies. But the GOP plan would provide those, in the form of tax credits for the former and Medicaid for the latter. The challenge for the president and the GOP leaders in Congress will be to explain to Americans -- many of whom have become increasingly insistent on benefits but don't want to pay for them -- that there are no free lunches, not even in health care.