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Saturday Is Judgment Day

Saturday's GOP primary in South Carolina will effectively end the quests of at least two candidates still in the contest for president, but it may also put the brakes on one or two others. The likeliest victims on Saturday are John Kasich and Jeb Bush. If Bush comes in near the bottom, as polls suggest, he's done. Kasich really can't hold on after South Carolina and would be wise to return home to do the good job he's been doing in Ohio. But Donald Trump also faces challenges Saturday. If he fails to come in a very strong first, his claim to front-runner status begins to weaken.

Who would benefit most from Trump's slip? The conventional answer is Ted Cruz, but I think that's wrong. Cruz may well overcome Trump in South Carolina, as he did in Iowa, but his room to grow isn't nearly as great as Marco Rubio's. Cruz has a strong claim to the conservative base of the party, but once South Carolina is behind us, he's got to appeal to more mainstream voters.

Trump's edge with voters is based on his style, celebrity and starkly nativist and protectionist positions. Cruz can compete with Trump on some issues -- notably immigration, where he, too, promises to deport 11 million illegal immigrants. But he'll never win over those attracted by Trump's braggadocio and downright crudeness. He's too cerebral. And he's unlikely to out-protectionist Trump either. Does anyone really imagine Cruz threatening to slap on tariffs and launch trade wars with our biggest trading partners? If Cruz comes in either first or second, he stays in and has to fight a two-way battle, trying to both woo Trump's defectors and squash Rubio.

Assuming Marco Rubio comes in a strong third, he's got a leg up on Cruz. He'll take the lion's share of Bush's and Kasich's supporters going forward, and he can then challenge Cruz for the role of alternative to Trump. The two men will likely continue to bicker over immigration. That's a fool's errand. Voters get lost in the wonkish debate over "poison pill" amendments and Senate bills. On the immigration front, Cruz would be better off challenging Trump.

Cruz has successfully exposed Trump on the latter's pro-abortion history, his support for seizing private property under eminent domain for private gain, and his long-standing support for Democrat candidates, including Hillary Clinton. It's time Cruz does the same on Trump's immigration hypocrisy. Trump, after all, has a well-documented history of defying federal law and employing illegal immigrants. He's been sued for hiring some 200 illegal Polish workers in his Trump Tower project, who allegedly were threatened with deportation if they didn't work 12-hour days, seven days a week to meet Trump's schedule. And Trump's current project at the Old Post Office in Washington, D.C., according to interviews by The Washington Post, employs many illegal immigrants.

After Saturday, the likeliest scenario is that three men are left standing: Trump, Cruz and Rubio. If Rubio doesn't emerge a strong third and is heaped in with Bush and Kasich, he will probably end up struggling to stay in the race, too. The also-rans can limp along a bit longer if they have money in the bank, as Bush does. But they don't advance their own chances, and they make it harder for the party to win in November.

Until a truly viable alternative to Trump emerges, the Republican Party can write off regaining the White House on Election Day; and it jeopardizes its chances of holding the Senate as well. Saturday's results could winnow the field. But if this election stays a four- or five-man race any longer, we'll see a repeat of 2012. Democrats will unite around either Clinton or Sanders when the primaries are over. But Republicans could well see themselves so fractured and embittered from the primaries and the debates that they cannot recover.

Calling Out Trump

For months, responsible Republicans have been pussyfooting around Donald Trump. No one has been willing to take him on vigorously and consistently, not even other Republican presidential candidates, for fear of offending Trump's supporters. The hope has been that he will eventually implode and, when he does, the GOP will benefit from Trump's having attracted new voters into the party. Instead of attacking Trump, the mainstream candidates have engaged in a circular firing squad, trying to pick off each other in the hopes that whoever emerges will finally be able to best Trump. It's not working.

Trump traffics in hate. He began his campaign telling Americans that Mexican immigrants are rapists and drug dealers, who, when they aren't busy defiling women, are stealing jobs. He has promised to build a wall across our entire southern border to keep out the supposed hordes that are invading our country, even though illegal immigration is at a decades-long low. He insists that he'll make Mexico foot the bill for the wall's construction. He promises to round up 11 million illegal immigrants and send them back where they came from. When asked how he will do so, he invokes "Operation Wetback," the Eisenhower-era program that led to the deaths of hundreds of people; 88 died from heatstroke in one incident alone.

Trump quickly went from bashing Mexicans to calling for bans on Muslims. All Muslims. He slandered American Muslims for celebrating the attack on 9/11: "Hey, I watched when the World Trade Center came tumbling down. And I watched in Jersey City, New Jersey, where thousands and thousands of people were cheering as that building was coming down. Thousands of people were cheering," he told a crowd in November in Alabama. When no evidence could be produced to back up his false memory, he did what he always does. He doubled down.

If every one of his opponents had taken the debate stage following Trump's outrageous remarks and said in one voice that they won't stand for this demagoguery, he would not be where he is today, the leading candidate of the Republican Party. Instead, they mostly ignored him or tried their own less-outrageous versions.

Ted Cruz has recently started to take on Trump in a systematic way in his TV ads, but even Cruz wilts when he stands on stage next to the man. Part of the problem is that, to one degree or another, most of the other candidates have demagogued on Trump's signature issue, immigration. And they've done so because they are afraid to stand up before conservative audiences and speak the truth. You can't tell me that Ted Cruz, Marco Rubio and Jeb Bush don't all know that illegal immigration is down, not up; that we spend more money on border enforcement than we do on all other federal criminal law enforcement combined; and that immigrants take jobs that others won't or can't do, with a net gain to the economy. Their reticence to set the record straight gives Trump free rein to get uglier every time he opens his mouth.

Expect it to get worse. At this point, Trump seems willing to say almost anything. He called Ted Cruz a "pussy" last week, repeating, to much laughter and applause, a line from a woman in the audience. His audiences are, in Trump's peculiar pronunciation, "yuge" -- and that is why none of the candidates want to criticize him.

But there are other ways to appeal to lower-middle-class voters than by resorting to vulgar language and pandering to bigotry. These voters have legitimate concerns about the erosion of their wages and their diminished opportunities in an economy that has stagnated. But competition from immigrants isn't the problem. How many of these voters really want to work in poultry processing or agriculture or mopping floors and cleaning toilets anyway -- jobs where immigrants, especially illegal immigrants, dominate?

It may be too late to stop Trump. I hope not, but my optimism dims with each debate, poll and primary. The candidates will have one more chance before the South Carolina vote, in Saturday's debate. Let's see if those who believe in something greater than themselves will stop taking shots at each other and focus on calling out Trump.

Political Pawns for the Democrats

The Supreme Court decided this week to take up the Obama administration's unilateral executive actions on immigration, which will keep the issue on the front burner for the presidential election. That's bad news for Republicans, including Donald Trump. It was bound to happen, of course. The administration has been nothing if not Machiavellian when it comes to playing the immigration issue for all it is worth.

In November 2014, Secretary of Homeland Security Jeh Johnson issued a series of memoranda that, in effect, delayed indefinitely the deportation of illegal immigrants who were parents to American-born children. The move also granted them permission to work in the U.S. Of course the overwhelming majority of these people were not going to be deported anyway -- two thirds have been living here 10 years or more -- and the majority were already working, albeit not with proper authorization. The administration's actions, therefore, did very little to change the status quo for illegal immigrants beyond giving them a false sense of security. Meanwhile, several states sued and the executive actions were put on hold while the case wends its way through the courts.

Without actual changes to U.S. law, illegal immigrants remain political pawns of whoever happens to be in power. The Democrats say they will protect them; but a Democrat president who enjoyed two full years of his presidency with Democrats in control of both houses of Congress chose not to change the law. Most Republicans have simply punted on the issue, except for Donald Trump, who promises he'll deport them all, which is a real crowd-pleaser among the voters he courts but will come back to bite him if he manages to win the GOP nomination.

Hispanic voters are not monolithic -- as I have been writing for three decades. A majority usually supports the Democratic nominee in presidential elections, but GOP candidates have won from a third to more than 40 percent of Hispanic votes in a majority of elections going back to Richard Nixon. A new report from the Pew Research Center shows that naturalizations and the growing number of Hispanic youth attaining voting age has pushed the number of potential Hispanic voters to 27.3 million, roughly 12 percent of the voting-eligible population.

As the Hispanic electorate grows, Republicans increasingly need to win more Hispanic votes to be competitive in states such as Colorado, Nevada, New Mexico, Florida (where non-Cuban Hispanics now outnumber the more Republican-leaning Cuban-American population) and even Virginia, which has grown more Democratic in recent years. Pushing a line on illegal immigrants that we should "round 'em up and kick 'em out" will simply shove Hispanics into the Democrats' arms for generations. Democrats will shake their heads in sympathy all the way to Inauguration Day.

The Supreme Court is likely to issue its decision in June or early July, by which time the parties will likely have settled on a nominee even if the conventions will be weeks away. The decision could inject an issue back into the campaign at a time when it may have withered away. I expect the decision to be closely divided, and it could leave a muddled mess.

Conservatives, including me, are hoping that the Court will slap down the administration's abuse of executive power. I'd like to see resolution of the status of long-term illegal immigrants, but I believe that Congress must act -- not the president alone -- if we ever hope to solve the problem in the long run. But I think it is quite likely the Court will avoid dealing with the substance and rule narrowly on whether the administration followed proper procedure in taking the executive actions.

No one will be satisfied with such a decision, which will dump it right back into the political maelstrom. The Democrat nominee will use the fear of mass deportations to drive young Hispanics to register and turn out to vote. When you add large numbers of new Hispanic voters to the ranks of Democrats' solid base among blacks, union members and single women, the path to the White House for a Republican nominee becomes much steeper. No matter who the GOP nominee is, if he's smart he'll wish the immigration issue would simply go away.

Is your pollution politically correct and racially balanced?

Last Friday I was invited to testify before the U.S. Commission on Civil Rights regarding “environmental justice”—the peculiar idea that the legality of pollution should hinge in part on whether its victims are white or not.  There were several panels and the event lasted all day, but I was one of the very few conservatives who spoke.  Below is my slightly condensed testimony, with which the left-leaning Commission was not happy.

Introduction
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 add that Ms. Chavez was once the staff director of the U.S. Commission on Civil Rights, and that I was once the Deputy Assistant Attorney General in the U.S. Justice Department’s Civil Rights Division and, right after that, held the same position in the Environment and Natural Resources Division. 

The invitation I received from you said that you are conducting a study on the Environmental Protection Agency’s “compliance with Title VI and Executive Order (E.O.) 12,898” as part of your “annual statutory enforcement report,” particularly with regard to the placement of “coal ash disposal facilities near low-income and minority communities.”

General Issues Raised Here

The federal government certainly has an interest in ensuring that it does not fund programs or activities that discriminate on the basis of race, color, or national origin, and indeed Title VI of the 1964 Civil Rights Act, 42 U.S.C. 2000d, forbids the funding of such programs.  Thus, if a company participating in a federal program or activity decides to aim pollution at a population on the basis of its race, color, or national origin, then this would violate Title VI.

EO 12,898 is aimed at federal agencies rather than recipients of federal money.  In addition, it directs those agencies to address adverse environmental “effects” on “minority populations and low-income communities”; in this respect then, by its terms, it is both narrower and broader than Title VI in that the latter involves disparate treatment rather than disproportionate effects (the Supreme Court has repeatedly held this), protects all racial and ethnic groups rather than only “minority populations,” and says nothing about “low-income communities.”

[What’s more, such an executive order] must at least be consistent with existing statutes, even if the guidance is not required by them.  In this regard, an executive order that provides protection to some racial and ethnic groups but not for others is, literally, denying the equal protection of the laws.  Thus, I would note that EO 12,898’s protection of “minorities” and not nonminorities is, to put it gently, constitutionally problematic.

In this regard, too, an executive order or statutory enforcement policies (including formal regulations, rules, informal guidance, and the like) that encourage actions prohibited by a statute are also problematic.  In this regard, then, EO 12,898’s apparent focus on disproportionate effects rather than disparate treatment is likewise a problem, since as discussed below it encourages race-based decisionmaking; so are EPA’s regulations.

The balance of my testimony will be about why using an “effects” test in this area is a bad idea as a matter of both law and policy.

Specific Problem of the Disparate-Impact Approach in Environmental Law Enforcement

To repeat:  The federal government certainly has an interest in ensuring that it does not fund programs or activities that discriminate on the basis of race, color, or national origin.  Thus, if a company participating in a federal program or activity decides to aim pollution at a population on the basis of its race, color, or national origin, then this would violate Title VI.

Suppose, however, that the pollution affects a neighborhood that was not targeted in this way, but has residents who happen to be disproportionately members of a particular racial or ethnic group or groups.  Should pollution that would otherwise be lawful become unlawful because of this racial disproportion?

That seems very odd to me.  Why should the federal government say this?: “Mr. Polluter, you need to do a better job in making sure that your pollution affects a politically correct mix of people.  You need to take steps to make sure that your pollution affects more white people, or else fewer nonwhite people.  Then it would be all right; but, as it stands, your pollution is illegal because it is not racially balanced.”

In my view, not only is this ridiculous as a matter of policy, it is also unsound as a matter of law.  Title VI itself bans only disparate treatment, not actions that have only a disparate impact.  It follows that Executive Branch regulations and policies under it that adopt the disparate-impact approach are ultra vires and invalid. 

I will elaborate in a moment on why, as a general matter, the disparate-impact approach is bad policy.  I would note at the outset, however, that it seems to me particularly untenable in the environmental area.  It is one thing to say that companies should try to avoid using hiring criteria that disproportionately exclude people of this or that racial or ethnic group; but to say that companies should try to pollute in a politically correct way is just silly.

Should companies try to locate manufacturing plants only in places that reflect the racial makeup of the general population (or is it the state’s general population, or the county’s general population)?   Should they try to develop and market products with possibly negative environmental effects so that those buying them reflect a predetermined racial makeup?  Conversely, is it important for facilities and products that are positive environmentally to be developed and marketed only if it is ascertained that they will enjoyed equally by all racial and ethnic groups?

Under a disparate-impact claim of discrimination, discriminatory motive is irrelevant: It need not be alleged or proved, and it doesn’t even matter if the defendant (I will say “defendant” even though the regulated entity might not be in litigation) proves that there was no discriminatory motive. If a policy or procedure or product results in a disproportion of some sort, then that’s enough, even if the policy is nondiscriminatory by its terms, in its intent, and in its application. The defendant can prevail only by showing—to the satisfaction of a judge or jury or bureaucrat who may know or care nothing of the defendant’s needs—some degree of “necessity” for the policy or product.

Now, suppose that you are a potential defendant and that you have some non-discriminatory selection criterion that has helped you run your business well, but the criterion has a disparate impact on some racial or ethnic group. You know you are vulnerable to a lawsuit, which you may or may not win, depending on the judge or jury or bureaucrat you draw, and you know that lawsuits are expensive and arguments with federal bureaucrats undesirable, win or lose. If you don’t want to get sued or hassled—and who does?—the potential of a disparate-impact complaint is going to push you to do one of several things, none of which is good. You might keep the criterion but apply it in a way that gets your numbers right: In other words, you will adopt surreptitious quotas. Or you might get rid of the criterion altogether, and just accept the fact that your business will not be run quite as well as it could be. Or you might decide to replace the old criterion with a new one, which you will choose and/or apply in a race-conscious way. You might, that is, now choose a criterion because of the racial outcomes that will result, or choose some criterion that can be applied in a biased way so that the resulting racial double standard will ensure that the numbers come out right. No matter what, you are no longer using the criterion you freely chose because you thought it to be the best, but are instead weighing race—directly or indirectly—in what you do.

In other words, in many contexts, you’re supposed to stop judging people by the content of their character, and start judging them by the color of their skin. In addition to this moral dilemma, there is this overwhelming practical one: There is probably no selection or sorting or siting criterion that does not have a disparate impact on some group or subgroup.

Mr. Chairman, let me add here the most fundamental point of all, although it doesn’t directly apply in the environmental context: If a business, agency, or school has standards that aren't being met by individuals in some racial or ethnic groups, there are three things that can be done. First, the standards can be relaxed for those groups. That’s what racial preferences do. Second, the government or aggrieved private party can attack the standards themselves. That’s what the disparate-impact approach to enforcement does. Third, one can examine the underlying reason why a disproportionate number of individuals in some groups aren't meeting the standards—such as failing public schools or being born out of wedlock—and do something about that. But this option holds little interest on the political left.

Having made that aside, let’s get down to some nitty-gritty questions that the disparate-impact approach raises here.

What should decisionmakers do if a practice has a disparate impact in one location but not in another? It is astonishing to interpret a national civil-rights statute in a way that makes conduct in one city illegal while allowing exactly the same conduct in another city, just because of the different racial makeup of the two cities. Or suppose the impact ebbs and flows over time, as people move in and out of a neighborhood? And what if a policy has an unfavorable disparate impact in some respects on a particular race, but a favorable disparate impact in other respects on those who are predominately of that same race?  That is, what if a siting decision means more pollution—but also more jobs? This kind of problem—that is, a challenged policy having both good and bad results for a racial minority group—was at issue in the Fair Housing Act case recently before the Supreme Court and decided last June (see my law journal article cited in the appendix).

And what if a practice is favorable for some racial minority groups (say, Asian Americans) but not for others (say, Latinos)—and, what’s more, the opposite is at the same time true for some minority subgroups (e.g., the practice is unfavorable for Hmong but favorable for Asian Americans more broadly)?   And remember, too, that “majority” groups must be able to bring these lawsuits and claim these protections, too, or you’ve added an even greater equal-protection problem.

One final point:  It’s frequently asserted that we must use the disparate-impact approach because actual discrimination—disparate treatment—is difficult to prove. Indeed, this is the principal justification for the disparate-impact approach. But this is simply not true: I have little doubt that the overwhelming majority of civil-rights cases brought and won by the federal government are disparate-treatment cases, as anyone who reads the government’s press releases every day (as we do at the Center for Equal Opportunity) can attest.  (And it’s odd for the government to argue for redefining an offense to make it easier to prove. It’s as if the government were to say that, because it is hard for us to prove arson, we are going to make it a crime if you allow a building you own to burn down—even if you can prove that the building burned down by accident—since that way all we have to prove is that you owned the building and it did burn down, and that’s easy.)

Conclusion

There are serious environmental issues, but nothing is gained by looking at them through the disparate-impact lens of race, and the price of encouraging race-based decisionmaking is an unacceptable one.

Thank you very much, Mr. Chairman, for the opportunity to testify today.  I would be happy to try to answer any questions the Commission has.

Cruz's Trump Problem

Donald Trump is right: Ted Cruz has a problem. By raising the "birther" issue, Trump is planting the seeds for a legal challenge should Cruz ultimately win the Republican presidential nomination. At the moment, Trump is hoping that all he has to do to stop Cruz's rise in the polls is to question whether the senator is even eligible to become president. But Trump won't stop there if Cruz's growing supporters don't defect over the birther issue.

The issue is complicated, and the merits have never been fully litigated. Federal law confers automatic citizenship to any child born outside the United States as long as one parent is a U.S. citizen at the time of the birth and meets other specific criteria. In Cruz's case, though he was born in Canada and his father was not a U.S. citizen, his mother was. In order to be granted automatic citizenship by law in 1970, Cruz had to have one parent who not only was a U.S. citizen, by birth or naturalization, but also had lived in the United States for at least 10 years -- at least five of them after the age of 14.

Cruz's American-born mother met all the qualifications, so he was born a U.S. citizen. Case closed? I think so -- and most constitutional scholars agree, but not all.

A small group of constitutional scholars argues that eligibility is far more restrictive. The debate centers around a single sentence in Article 2 of the Constitution: "No Person except a natural born Citizen ... shall be eligible to the Office of President." In an op-ed for The Washington Post this week, Widener University law professor Mary Brigid McManamon claims that the phrase "natural born Citizen," which appears only once in the Constitution, means that only people born on U.S. soil are eligible to become president. She asserts that the Founding Fathers included the phrase to adopt the English common law definition of citizenship -- jus soli, or the law of the soil -- which conferred citizenship on the basis of birthplace.

So does this arcane issue really matter? Most voters seem to dismiss it, with a new Bloomberg Politics/Des Moines Register poll showing that 83 percent of Iowans don't care that Cruz was born in Canada. But polls don't settle constitutional issues; courts do. All it will take to cause major problems for Cruz is a lawsuit.

Several such lawsuits were filed against Barack Obama in 2008, alleging falsely that he was born in not Hawaii but Kenya. Those lawsuits were dismissed because the plaintiffs lacked standing; they could show no individual harm to themselves even if their claims turned out to be true.

But if Cruz continues to eat into Trump's support by winning Iowa and picking up Trump supporters in South Carolina, Nevada and elsewhere, you can bet Trump will call in his lawyers.

He says he wouldn't want to win that way -- for now, at least -- but he is famously litigious. He'll try to win any way he can, and if it means bringing suit against Cruz, so be it. As the early front-runner for the GOP nomination in a highly contested race, Trump could show that Cruz's candidacy caused him actual harm should the senator become the nominee. Trump might not even have to wait that long to force a hearing in the courts.

Meanwhile, Cruz is being pushed to deal with questions about his eligibility, which throws his campaign off track. There is some delicious irony in Cruz's predicament. After all, he wants to deny birthright citizenship to children born in the United States to parents who are here illegally. He acknowledges that doing so would require amending the Constitution, because the 14th Amendment clearly states that people born on U.S. soil are citizens. But as satisfying as it might be to hoist Cruz with his own nativist petard, the constitutional issue is more important than Cruz.

If Cruz had more friends in Congress, he might be able to pre-empt a legal challenge by getting legislation passed to make clear that citizenship at birth, not whether a person was actually born on U.S. soil, satisfies the constitutional requirement of "natural born Citizen." Alas, not many members of either party are likely to come to his aid.
Ted Cruz indeed has a problem. And his name is Donald Trump.

Doing the Honorable Thing in New Hampshire

New Hampshire may well be the end of the campaign trail for more GOP hopefuls, as Iowa was for Rand Paul, Rick Santorum and Mike Huckabee. All three ran largely positive campaigns and comported themselves with dignity and grace when they bowed out. Unfortunately, the same can't be said for some of those hanging on by a thread in New Hampshire.

Chris Christie and Jeb Bush, in particular, have decided their best chance to stay in the race is to attack other candidates.

Chris Christie seems to be reverting to form as a guy with a mean streak, something he has mostly avoided in the debates. He is at his best when he channels his anger toward terrorists and worst when he demeans his fellow Republicans. His comments this week about Marco Rubio make Christie, not Rubio, look bad. Calling Rubio the "boy in the bubble" made me think of the Bubble Boy episode of "Seinfeld." But the bully on the TV show, who shouted and name-called from inside his bubble, seemed a lot more like Chris Christie than Marco Rubio. Christie has been a decent Republican governor in a Democrat state, but his ego gets the best of him every time he doesn't get what he wants.

Jeb Bush, however, is the true disappointment to me in this election. First let me say I think Bush would make a very good president. He's a lot more conservative than either his father or older brother -- and he governed as such for eight years in Florida. He showed real courage in office: He eliminated race-based college admission in the state; he took on the education unions and created a real model for change by enacting the first voucher program for kids attending failing schools (though it was later shut down by the courts); and he cut taxes.

But despite his stellar record and his success in raising more money than any other Republican, Bush has failed to connect with the electorate, and his performance in the debates hasn't helped. Now Bush is following advice to go negative, which doesn't suit him well.

Bush won't win New Hampshire and he may not even place. He's running fifth in the last three state polls. He's still got the money to stay in the race for a while, but it's hard to envision a scenario in which he can become the nominee. So the question becomes for him, how does he want to end his political career? He's not a sitting governor, as Christie and Kasich are, nor a senator, like Ted Cruz or Marco Rubio (who is retiring), which means he has no chance to redeem his political reputation when he fails to win the nomination.

As someone who admires Jeb Bush -- and who has tremendous personal affection for his whole family, who are among the most decent people I've ever met in politics -- I hope that he will listen to his conscience and not those who counsel attacks on other Republicans. I understand Bush was hurt when Marco Rubio decided to throw his hat in the ring rather than rally to his side. But reports in The New York Times this week that Bush is teaming up with Christie to try to knock Rubio out in New Hampshire make Bush seem like a sore loser, not the honorable man he's always been.

And it's not only Rubio that Bush is going after through his super PACs. (Yes, yes. I know Bush and the super PACs can't coordinate. But it's a distinction without a difference.) Bush went after John Kasich, too, when the Ohio governor looked like he was gaining traction in New Hampshire. And he's even tried to take on Trump (though I'm not sure that qualifies as a violation of President Reagan's Eleventh Commandment: "Thou shalt not speak ill of another Republican").

If Bush, Christie or Kasich fare poorly in New Hampshire, I hope they will do the right thing. The same goes for Ben Carson and Carly Fiorina. Hanging on hoping you can take another candidate down a notch certainly does the party no good.

The New York Times Slams Racial Preferences

Not on purpose, of course, but bear with me. 

Last week there was a long, front-page story in the New York Times, showcasing the success that the University of Michigan has had in achieving student-body “diversity” without the use of racial admission preferences. On the article, three observations.

First, the obvious point is that this is bad news for the University of Texas in the Fisher case, since it shows that such preferences are not “narrowly tailored” to the achievement of student-body diversity. (Whether schools ought to be trying to achieve student bodies of a predetermined racial and ethnic mix at all is an even better question.)

Second, as has happened in the past, Lee Bollinger’s mask has slipped. He admits in the article that the reason for the use of admission preferences is not the purported “educational benefits” of a diverse student body, but really “to overcome two centuries of legacies of discrimination and active disempowerment and wealth transfer.” That may warm Ta-Nehisi Coates’s heart, but this purported justification is one the Supreme Court has rejected and, therefore, schools are no longer supposed to be using in litigation. This is of some note since Mr. Bollinger — “who was Michigan’s president during the Supreme Court cases [challenging preferences there in 2003] and now leads Columbia University” — has long been the face of university affirmative action.

Third, it’s chilling that one way the University of Michigan decided to increase its diversity was by admitting nobody off its waiting list and thus shrinking its enrollment, since the list had too many well-off white and Asian American students on it. Think about that: People are refused admission, not just because it was preferable to admit someone of a different color (as bad as that is), but because the school wanted to increase the percentage of some colors of students by denying admission to students of other colors. Keep this in mind the next time you’re told that politically correct discrimination is more acceptable than old-fashioned discrimination because the latter was not “inclusive” and the former is.

Clubbing White Guys:  The corporate head of Sam’s Club brags in this video about how she demands not only that her own managers get their racial/ethnic/gender numbers right, but that her suppliers do so as well.  The resulting discrimination is, of course, flatly at odds with the 1964 Civil Rights Act, which says that employment decisions are supposed to be made without regard to skin color, national origin, and sex. Who does she think she is, anyway — a university? 

Bragging about Lawbreaking:  The provost and senior vice president for academic affairs at Rochester Institute of Technology bragged last week in Inside Higher Ed about how his institution violates Title VII of the 1964 Civil Rights Act.  I hope someone sues RIT, or at least that RIT’s general counsel takes a look at this, in light of Title VII, which (as just noted) makes it illegal to weigh race, ethnicity, and sex in hiring and promotion decisions, and to sort applicants on that basis.

This is therefore illegal: “Or if you have an opening for a dean position and are going through a search process, you might consider asking a qualified woman to step in as interim — something I’ve done on two occasions at RIT.”  Clearly the suggestion is that you look for a woman to appoint, not just that you be willing to appoint one if she is the best qualified.  It is likewise illegal to tell a hiring committee that it has to meet a racial/gender quota in sorting applicants into a finalist selection pool, as the author also recommends.

Finally, there’s this:  “In other words, if you have to choose between two equally qualified candidates, choose the one who brings diversity to your college or university.”  In the first place, and as a practical matter, “diversity” policies inevitably result in people getting hired who are not just marginally less qualified but substantially less qualified.  Moreover, how often can it be said that there is no difference between two competing candidates?  This is just an excuse for discrimination.  But, in the rare instance where there is a tie, then the decisionmaker should flip a coin.  Would anyone dispute that a policy of tie-goes-to-the-white-male would be discriminatory?

More on the illegality of this sort of thing here.

Omnibus Bad-Wish List:  It has a lot of competition, of course, but a case can be made that, pound-for-pound, the worst bureaucracy in the Obama administration is the Department of Education’s Office for Civil Rights.  Here’s hoping, therefore, that this fact is reflected in the funding that it gets — or, more precisely, doesn’t get — in Congress’s omnibus spending bill. More here and here.

P.S.  I don’t know if this can be done at this point or not, but Congress could also specify particular areas in which appropriated money cannot be spent — e.g., no funds shall be used to argue that “microaggressions” or bathrooms-for-actual-boys-only-and-bathrooms-for-actual-girls-only or whatever violate federal civil-rights laws.

Yesterday’s Giants, Today’s Dwarves:  A couple of thoughts regarding campus demands to rename buildings, statues, and the like commemorating individuals whose views on minorities and women have not stood well the test of time.  First, since none of us is without sin, requiring sinlessness for commemoration means no one will be commemorated — yet even those of us who are terrible sinners in one area might be visionaries in another.  So a Woodrow Wilson Civil Rights Center might be a bad idea, but not a Woodrow Wilson Center for Loopy Progressivism.  Second, the Left seems happy to name things after people who are actually convicted criminals, so long as the person is their convicted criminal:  Consider the recent proposals to honor former D.C. mayor Marion Barry.  One suspects, alas, that denigrating the Nation’s (and the West’s) founders – and thus the Nation (and the West) itself – is part of the long-term game here.

It has also struck me that the following analogy might be apt.  Suppose that an ante bellum Southerner criticized Yankees for having bad manners.  He might well have been right.  But, in hindsight, we would all agree that, bad manners or not, the Yankees were right about slavery, and to focus on bad manners at a time when that abhorrent institution was alive and well showed, to put it charitably, a lack of perspective.  In 2016, for the Left to be focused on renaming buildings and removing statues — when 71 percent of African Americans are being born out of wedlock, and that is the real obstacle to black progress — shows a similar lack of perspective.

President or Divider in Chief?

I'm trying to wrap my mind around what it will mean if Donald Trump wins the Iowa caucuses in a few days and goes on to win New Hampshire, South Carolina and ultimately the Republican nomination. If so, he'll face a badly damaged Hillary Clinton -- or, less likely, socialist Bernie Sanders -- and will be the odds on favorite to become the next president of the United States (barring a credible but unlikely third-party challenge by Michael Bloomberg). Mostly, such fantasies put me in a funk. But I think it's worth thinking through what it would mean for America going forward based on what politics have done to America in the recent past.

There is no question that Donald Trump is a polarizing figure. You either love him or loathe him; few people fall in between. But he certainly would not be the first man elected who turned out to divide the country. We've just experienced seven polarizing years under President Barack Obama and the country is worse for it, regardless of what you believe about his policies.
President Obama promised to bring us together again: He is the man who gave one of the most inspiring speeches in recent memory about what it means to be American. At the Democratic Convention in 2004, he proclaimed: "There's not a liberal America and a conservative America; there's the United States of America. There's not a black America and white America and Latino America and Asian America; there's the United States of America." But as president, he alienated conservatives, thumbed his nose at Congress, and marginalized anyone who disagreed with him.

We are more divided today than we have been anytime since the Vietnam War. Rancor, name-calling and suspicion infect Americans on both sides of the political divide. For those who love President Obama, anyone who doesn't is hateful and racist. But the left is not entirely to blame for the divide. Much ugliness has reared its head on the right as well as the left over the last seven years.

What happens to this divide, then, if Donald Trump becomes the 45th president of the United States? He has promised as one of his first orders of business to round up nearly 11 million illegal immigrants, as well as their American-citizen children, who are minors. He has promised to turn away refugees and start keeping tabs on Muslims. These actions would affect not only the direct targets but also millions of Americans who are the targets' family, friends, employers, landlords, customers, co-workers and community members. It's hard to overstate the seeds of division this would reap over generations.

Maybe Trump's rhetoric has all been for show. Maybe he won't even try to fulfill these promises once in office. And unquestionably, the courts would intervene if he did try. But in the meantime, what will it do to America? Will we be a stronger, more united country than we are today? Or will we be a nation in which we hunker down into our own groups, denying the right to fellow countrymen who do not share our ancestry or ideology the right to even call themselves Americans?

This nation has survived bad presidents. And we would probably survive a Donald Trump presidency, but it would change us.

After eight years of division, we need to come together. We need a president who can work with the elected representatives of the people in Congress. We need a president who puts his own ego on hold for four years while he works to boost the confidence of the American people -- all the people. We need someone who knows that the presidency isn't an imperium.
Donald Trump may win the nomination. He may win the presidential election. But he will not make America great again if he continues on his path of dividing, insulting and threatening those who disagree with him. If he wins Iowa, let's see if he can at least start acting presidential.

Violating Privacy Is Bad Business

Hooking up online and improving college exam scores wouldn't seem to have much in common, but apparently the nation's largest online dating service company is betting they do. The Match Group of dating sites -- which includes Match.com, Tinder, OkCupid, FriendScout24, PlentyOfFish and Chemistry.com -- spun off in late 2015 from IAC along with two businesses aimed at improving grades and test scores for college-bound students, The Princeton Review and Tutor.com. Obviously, the company hopes that combining the enterprises will enhance what the business world likes to call synergy, in this case access to an expanded pool of customers to generate economic returns greater than the sum of its constituent parts. Nothing wrong with that -- except when the business model may depend on violating the privacy of individuals.

Online dating services accumulate volumes of information on those who sign up to meet prospective partners -- info on income, education, likes, interests, personality traits, physical appearance, you name it. Their success depends on mining this data to market people to one another and to attract new customers. Some services charge hefty monthly fees; others are "free," sort of. The latter make money by selling access to users to advertisers, who can target their ads to meet the demographic characteristics and habits of users. Free sites also usually provide premium access that requires a fee for more personal information or for upping the chances that the customer's profile will reach potential matches.

Anyone who signs up for such services knows that the information he or she provides will be available to many people -- but I'm guessing that most who submit pictures and personal, sometimes intimate, details aren't imagining their data becoming a gold mine for advertisers, much less hackers. Last year's much-covered hack into Ashley Madison, which billed itself as a site for married people to have affairs, shows how vulnerable the online dating sites are to hackers. The breach included the names, addresses and phone numbers of millions of users and was implicated in a handful of suicides, including one by a Baptist pastor and seminary teacher in New Orleans. In its corporate SEC filings, The Match Group admits: "We are frequently under attack by perpetrators of random or targeted malicious technology-related events. ... There can be no assurance that our efforts will prevent significant breaches in our systems or other such events from occurring."

But what about students who sign up for college exam prep courses or tutorial help in passing their chemistry or calculous courses? Do they imagine that enrolling for such services will mean their personal data could provide a gold mine for a company whose major revenue comes from online dating services? Do parents know that when their underage kids enroll for exam prep or tutoring, personal information may be shared with hookup sites that could then target their kids to become customers? I doubt it, and The Match Group makes no guarantee that data sharing among its entities will not include those customers whose sole aim is to improve their grades and test scores.

The privacy of education data has long been a public concern. The Family Educational Rights and Privacy Act of 1974 protects personally identifying information from most public disclosure. The act prohibits the release of information by schools and colleges without the permission of the student. But the law doesn't cover such entities as The Match Group.

Student privacy ought to be protected from unscrupulous business practices. A good start would be requiring a company such as The Match Group to ensure that the private data of its underage customers not be used as a profit center to boost revenues in its dating services. It would be good if the company itself would uphold high ethical standards by setting up a firewall between its educational services and its dating services. But if the company won't do it, lawmakers ought to look into regulating data sharing that might harm vulnerable underage consumers.