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The Balkanization Administration

If there’s one thing that this country needs more of, it’s racial division.  That, at least, seems to be the view of the Obama administration.

As Mike Gonzalez of the Heritage Foundation writes in this Issue Brief posted recently:

On the first day of Congress’s recess, the Obama Administration recommended the most sweeping changes to the nation’s official racial and ethnic categories in decades.  The two most significant proposals were 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. The Office of Management and Budget (OMB) Notice asked for comments to be submitted within a month — the shortest window possible — for what it described as a “limited revision” of data collection practices.  Far from limited, the proposals would have long-term consequences for how one-fifth of all Americans are defined demographically and would create more societal conflict over racial preferences and political gerrymandering. The American people deserve more than a month to debate such significant changes, and Congress must weigh in.

Mr. Gonzalez concludes:

The OMB states that America’s increasing ethnic diversity requires more and more group classifications. An equally practical, and much preferred, policy response would work to smooth out these differences by promoting assimilation, which was the policy approach taken for the first two centuries of the Republic. That approach succeeded in achieving what was thought by many to be impossible: It created a cohesive American population out of many and vastly different peoples.

I should add that the administration has also recently announced that it is pushing ahead with its proposal to encourage the creation of a Native Hawaiian “Indian tribe,” despite Congress’s longstanding refusal to endorse this additional balkanization of our country. 

All this in addition to its usual support of racial and ethnic preferences of all kinds, its aggressive use of the “disparate impact” approach to civil-rights enforcement, and its encouragement of racial grievance hustlers in our inner cities.

I remain optimistic about America continuing its remarkable progress toward the realization of its E Pluribus Unum ideal, but increasingly that optimism is possible only if one takes the long view and ignores what’s going on during this administration. 

But wait:  There’s more –  The Obama administration released last week its report on “Advancing Diversity in Law Enforcement.” As you would expect, there is a lot in it on how important and desirable it is to have a politically correct racial and ethnic mix in police departments and how you should try your best to attain that mix, and lots and lots about how you must never ever do anything that is “disparate treatment” for, or has a “disparate impact” on, a group that is “underrepresented.” 

But there is not one word in the report that reminds those in charge of the recruitment, hiring, and retention of law-enforcement officials that it is not just “underrepresented” groups that are protected from racial and ethnic discrimination, but all groups — even, say, Irish Americans who happen to be white. Indeed, footnote 119 leaves the door open to such politically correct discrimination. 

So the end result is that the federal government is encouraging recruitment, hiring, and retention with an eye on skin color and national origin. This is a rather odd thing, one might think, for the Justice Department’s Civil Rights Division and the administration’s Equal Employment Opportunity Commission — the two agencies releasing the report, which have the duty of protecting all Americans from job discrimination — to do. Odd, but somehow not surprising. 

P.S.  Also last week, the White House likewise released this presidential memorandum for “Promoting Diversity and Inclusion in the National Security Workforce.”

One last item – A couple of months ago, the chief of staff of the Equal Protection Agency sent an email to all the agency’s employees that begins and ends as follows:

Dear Colleagues:

A professional, productive, and inclusive workplace is essential to our mission of protecting human health and the environment.  Today EPA is taking a crucial step forward and playing a leadership role for the federal government in equal employment opportunity and diversity and inclusion by piloting the collection of voluntary, self-disclosed sexual orientation and gender identity (SOGI) workforce data.  When collected, safely stored, and analyzed along with other demographic information, SOGI data serve as an important resource for developing workforce engagement strategies and improving organizational performance.

It concludes:

Thank you in advance for supporting this ground-breaking pilot.

Matt Fritz
Chief of Staff

I guess the Obama administration figures that the more boxes that we have to put ourselves into for the federal government, the better off we’ll all be.

A Stain on Our Politics

I would rather be writing about Bob Dylan's surprising Nobel Prize in literature this week, a well-deserved acknowledgment of his contribution to modern culture. But that would entail ignoring the elephant in the room: the refusal of many in the Republican Party to admit they have nominated a man so unfit to be president he may well take the party down with him when he loses Nov. 8. I have been a proud Republican for more than three decades -- but today I am ashamed of my party and its leadership.

Donald Trump's words are so despicable that many of them can't be printed or uttered verbatim on national media. His actions are worse. He treats women like horseflesh he owns by virtue of his power and wealth. He feels entitled to walk into the dressing room of young women, even young girls in the Miss Teen USA contest, when they are undressing for one of "his" beauty pageants and brags about it on "The Howard Stern Show." He gropes perfect strangers on airplanes, in hallways. He thrusts his tongue down the throat of a People magazine reporter while his pregnant wife, Melania, is upstairs at Mar-a-Lago, calls a reporter from The Philadelphia Inquirer a c--- and a b---- when she writes an article he doesn't like. And when he is confronted, he denies everything and insults the accusers. "Look at her. I don't think so," he says, as if he wouldn't deign to assault anyone he rates less than a perfect "10" in the system he uses to judge women's worth by their beauty.

Do I believe the accusers? Yes, I do. They have nothing to gain and everything to lose by coming forward so publicly. They may support Hillary Clinton -- can you blame them? -- but would they take on a man who is known for his intimidating lawsuits if this information were false? Their lives will be upended by their revelations. Trump claims that they are all lying and that he will release the evidence at the "appropriate time." Yeah, right after he releases his tax returns.

Republicans who continue to defend Trump always fall back on the defense that the Clintons have done worse. I have written thousands of words about Bill Clinton's disgusting behavior and called on him to resign the presidency when the Monica Lewinsky story broke. But Bill Clinton is not running for president. I've criticized Hillary Clinton for her conflicts of interest with the Clinton Foundation while she was secretary of state, and I've suggested she and her family abandon all ties to the foundation if she's elected. I've criticized her private email servers and her mishandling of classified information. I haven't blamed her personally for the deaths in Benghazi, any more than I would blame President Ronald Reagan, for whom I worked at the time, for the deaths of 241 Americans in the Beirut bombings in 1983. Terrorists were responsible for those deaths, not Secretary Clinton or President Reagan.

But creating some moral equivalency between Donald Trump's behavior and Hillary Clinton's shows just how corrupted our politics have become. Partisanship should not blind us to words of unspeakable crudeness or acts of sexual aggression and assault. Conservatives have been at the forefront of warning that when we define deviancy down, we make acceptable what should be unacceptable, thus undermining morality. We know this in our hearts. We must stop making excuses on behalf of a man who has demonstrated from the very moment he descended the escalator at Trump Tower to announce his candidacy on June 16, 2015, to today that he is unfit by every measure to lead this great nation.

This election and that portion of the electorate that supports Donald Trump shakes my faith in the future of conservatism and the Republican Party. I pray my party and my country can recover from this stain on our politics.

Law and Order: Good Issue, Bad Messengers

Channeling Richard M. Nixon from the 1968 presidential campaign, Donald Trump has tried to make "law and order" one of his signature issues. In Monday's debate, Trump claimed that "African-Americans (and) Hispanics are living in hell because it's so dangerous. You walk down the street, you get shot."

Trump's caricature is ridiculous -- but that doesn't mean crime is irrelevant to minority communities. Blacks and, to a far less degree, Hispanics are likelier to become crime victims than whites. The homicide rate for black victims is nearly eight times greater than the rate for whites; about 1 in 40,000 whites become a victim of homicide in the U.S. each year, whereas about 1 in 5,000 blacks will be murdered, according to an analysis by Nate Silver of FiveThirtyEight. The homicide rate for Hispanics is about twice that of whites, so about 1 in 20,000.

These statistics are most troubling in light of newly released FBI data that show that homicides went up in 2015. Violent crime had been going down for two decades, but that trend reversed itself in 2015. Homicide increased by almost 13 percent between 2014 and 2015, with blacks accounting for more than half of victims even though they make up only 13 percent of the total population. Hispanics were 16.6 percent of victims, roughly the same as their proportion of the population.

But even if blacks aren't likely to be killed -- homicide still remains a rare phenomenon -- they are likelier to live in cities with high crime levels. St. Louis became the most dangerous city in America, according to an analysis of the new FBI violent crime numbers by The Wall Street Journal, followed by Detroit and Birmingham, Alabama. Indeed, all 10 of the most dangerous cities have large black populations, while only one -- Oakland, California, the ninth-most dangerous city -- had a percentage of Hispanics larger than the national average.

So why aren't more blacks jumping on the "law and order" bandwagon? Perhaps if Trump were not so ham-handed, he might be able to make the issue an appealing one for minority voters. Trumped talked about "stop and frisk" laws, which debate moderator Lester Holt incorrectly suggested has been ruled unconstitutional. (The case Holt referred to was a lower court ruling not applicable outside the court's jurisdiction.) But Trump left it to Hillary Clinton to raise the issue of community policing, an effective and far less controversial method than stop and frisk.

Community policing involves putting more police officers on the street, where they can get to know the people they are sworn to protect. It means police officers walking a beat or patrolling neighborhoods in their cars so that residents get to know the officers before they need police help. But effective policing requires that a certain level of trust be developed -- on both sides of the equation. Sadly, trust between police and minority communities seems to be on a precipitous decline. A whole generation of young blacks is learning to fear the police and not to respect them. At the same time, many police officers -- black as well as white -- behave as if they fear young black men and, consequently, don't always treat them with respect. Meanwhile, many Hispanic immigrants avoid reporting crimes for fear of being deported.

Minority communities would benefit if effective crime-fighting strategies became a focal point of politicians. Unfortunately, neither Trump nor Clinton is well-positioned to make the case. Trump is, deservedly, suspect on the issue. He may talk about his concern for blacks and Hispanics when it suits him, but his racial stereotypes and ugly rhetoric make him a poor messenger. Clinton, on the other hand, worries too much about alienating the Black Lives Matter movement to argue for more cops and fewer criminals out on the street.

If left unaddressed, violent crime will continue to climb. We've had a good couple of decades, but there is no guarantee that crime will remain low. If we're not careful, we could go back to where we were in 1968 -- and the ones who would suffer most would be the great majority of law-abiding black and Hispanic Americans.

Do Non-Citizens Vote?

Do non-citizens vote?

Yes, they do, according to this study — and they vote quite a bit.  Here’s the abstract:

In spite of substantial public controversy, very little reliable data exists concerning the frequency with which non-citizen immigrants participate in United States elections. Although such participation is a violation of election laws in most parts of the United States, enforcement depends principally on disclosure of citizenship status at the time of voter registration. This study examines participation rates by non-citizens using a nationally representative sample that includes non-citizen immigrants. We find that some non-citizens participate in U.S. elections, and that this participation has been large enough to change meaningful election outcomes including Electoral College votes, and Congressional elections. 

Something to keep in mind the next time you hear there’s no such thing as voter fraud.

An Irresponsible Dissent – Speaking of voting, here’s another item.  Unhappy with the fact that the majority reversed, though only in part, a district court decision striking down two Ohio statutes — that “(1) required county boards of elections to reject the ballots of absentee voters and provisional voters whose identification envelopes or affirmation forms, respectively, contain an address or birthdate that does not perfectly match voting records; (2) reduced the number of post-election days for absentee voters to cure identification-envelope errors, and provisional voters to present valid identification, from ten to seven; and (3) limited the ways in which poll workers can assist in-person voters” — a federal appellate judge has written a dissent that includes 11 pages worth of photographs of civil-rights martyrs. 

This is irresponsible behavior for a judge. To compare relatively minor, routine administrative changes such as these to the horrific murders and other terrible events that occurred during the Jim Crow era is wholly unjustified.  To complain that the majority is trying to “reverse the progress of history” in taking one side or the other in a dispute over a seven-day vs. a ten-day deadline for a voter to cure an absentee ballot problem is bizarre to say the least. 

We expect such histrionics from activists, community organizers, and (alas) even politicians and football players, but we ought to hold members of the federal judiciary to a higher standard.

Survey of University Admission Directors –Inside Higher Ed had a story recently on its latest survey of college and university admission directors, and it contains much of interest.

For example, “in a potentially notable finding, a significant minority of college admissions directors now say (in contrast to past surveys but consistent with the views of many advocates for Asian-American applicants) that their colleges generally admit only Asian applicants with higher grades and test scores than other applicants.”  That is, four out of ten directors at both public and private schools indicated that they believe Asian-American applicants are held to a higher standard at “some” places; and 41 percent of public-school respondents and 30 percent of private-school respondents admitted that this was the case at their own university or college.  That is, indeed, “notable.”

Another juicy tidbit has to do with this summer’s Supreme Court ruling in Fisher v. University of Texas, upholding that school’s use of race and ethnicity in admissionsThe new IHE report notes that the Court “cited the research the school did over the years to show why it needed to consider race in admissions — and the decision said that colleges need to have conducted such studies to consider race.” But, the report continues, the recent “survey results suggest that relatively few colleges have done or plan to do such studies.”  Indeed, “only 13 percent of colleges said they conducted studies similar to those the Supreme Court cited as making the Texas approach legal. And only 24 percent said they planned to either start or continue such studies.” And this, the report correctly notes, “could make some colleges vulnerable to lawsuits.”

To look at it another way, three out of four schools interpret Fisher as giving them a green light to engage in admissions discrimination for the foreseeable future, and only 4 percent said they planned to change admissions practices in light of the Court’s ruling.

Good News, Bad News, Good News – I see that Ian Tuttle has an article in National Review on the University of Chicago’s recent “small blow for learning” — that is, the recent letter to incoming freshmen from John Ellison, dean of students, promising and defending true freedom of speech and thought. 

Alas, Inside Higher Ed reports that 150 faculty members there have written their own open letter to freshmen, pushing back. But George Leef also has, as it turns out, an article already defending the Ellison letter from its critics. 

So when it comes to speech there’s plenty to talk about.

Keith Lamont Scott and Daniel Kevin Harris

“Keith Lamont Scott Is Sixth Person to Die in Police Shooting in Charlotte This Year,” says an NBC News headline.  Well, yeah, but if you actually read the story, near the end you learn some interesting facts.  All those shot were men.  Each was 43 or younger.  Four were black, one was Asian, and one was white.  And all except for one was armed.

What’s more, here are the details on the one who was not armed:  “Daniel Kevin Harris, a white, unarmed, 29-year-old, was shot on Aug. 18, after a state trooper tried to pull him over for speeding but he kept driving. He was shot when he finally got out of his car. His family says he was hearing impaired.”

The state trooper was black, by the way.  Somehow, though, his shooting did not prompt riots.  H/t Mike Tremoglie (a former Philadelphia cop). 

There will always be police shootings, and it is a statistical certainty that some of them will involve African Americans, and the law of averages says some of those will involve police who are not African Americans, and inevitably sometimes the circumstances will make it easy to second guess the decisions made by the police.

So it’s illogical to think, “Gee, another black guy shot by a white cop — maybe there really is a problem here.”  It’s wrong to jump to conclusions even in a particular case before all the facts are known.  And it’s ludicrous to pounce on each such shooting as proving anything about the police generally.

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One of our frequent allies at the Center for Equal Opportunity in opposing racial preferences is the Mountain States Legal Foundation, headed by Perry Pendley.  MSLF is suing the Obama administration’s Federal Aviation Administration for abandoning a race-neutral system for the selection of air-traffic controllers (in place since 1991) and ending the use of these schools to train them. 

Perry notes that the FAA is insinuating that these schools discriminate against minorities.  The insinuation is a lie, says Perry, but if the Obama administration really believes it, why is it not investigating?  Good question.  He’s posted about it on Facebook and Twitter

*          *          *

The Harvard Crimson editorialized recently on the lawsuit that has been brought against the school for discriminating against Asian Americans in its admissions.  There was so much bad reasoning in the editorial, and the bad reasoning was (alas) so typical, that it is worth annotating. The editorial with my bracketed, italicized annotations follows.

More Nuance in Affirmative Action” [That should be “Preferences Based on Race and Ethnicity.”]

Using the Anti-Affirmative Action Lawsuit to Improve Considerations of Race [Right: “improved” racial discrimination.]

After two years of stagnation, Harvard’s hand will be forced to release six years of admissions data in response to an anti-affirmative action lawsuit. The organization Students for Fair Admissions claims that affirmative action illegally discriminates against Asian-Americans by setting a percentage quota. [Catch that, “illegally discriminates” – as opposed to the legal discrimination against Asian Americans that the Supreme Court has blessed.] U.S. District Judge Allison D. Burroughs has decided that more “comprehensive data” than the basic yearly demographics released by Harvard will be necessary for investigating these claims.

While we strongly disagree with the objective of this lawsuit [I.e., one supposes, stopping racial discrimination of all kinds, including that against non-Hispanic white Americans.], we believe that claims of discrimination against Asian-Americans do justify greater scrutiny of Harvard’s admissions process. Despite the unfortunate and unnecessary context in which it is taking place, the release of additional data is a step towards transparency and a better understanding of this highly selective — and, alas, sometimes equally mysterious — process.

Affirmative action is crucial for diversity on campus. [That is, for skin color diversity. There’s no assertion here that it’s necessary for other kinds of diversity.]  African-Americans and Hispanic students live with many socioeconomic challenges that depress their access to education [So do many white students.  So do many Asian American students.  And many — most — African-American and Hispanic students do NOT face “socioeconomic challenges.”  So why are we using skin color and national origin as a proxy for them? William Bowen and Derek Bok acknowledged in their classic apologia for racial preferences The Shape of the River that only 14 percent of the African Americans admitted to selective schools like Harvard come from low-SES backgrounds.], including the chronic underfunding of schools with students of color at every poverty level, or the psychological traumas that result from fearing or experiencing discrimination. An inability to accept the importance of race in a society that is far from race-blind will feed this cycle of deprivation.

[Note that the justification being offered here for racial preferences has nothing to do with the purported “educational benefits” of “diversity,” which  is the only justification in this context that the Supreme Court has recognized and is, therefore, the only one that Harvard relies on.  Rather, this is a broad claim of “societal” and “historical” discrimination that the Court has rejected.]

Nevertheless, the benefits of affirmative action do not justify fully ignoring claims about Asian-American admissions. [Those benefits, as discussed, are dubious both factually and legally.  And note that there has been no discussion of the undeniable and heavy COSTS of such discrimination, against which the flimsy and disputed benefits must be weighed:  It is personally unfair, passes over better qualified students, and sets a disturbing legal, political, and moral precedent in allowing racial discrimination; it creates resentment; it stigmatizes the so-called beneficiaries in the eyes of their classmates, teachers, and themselves, as well as future employers, clients, and patients; it mismatches African Americans and Latinos with institutions, setting them up for failure; it fosters a victim mindset, removes the incentive for academic excellence, and encourages separatism; it compromises the academic mission of the university and lowers the overall academic quality of the student body; it creates pressure to discriminate in grading and graduation; it breeds hypocrisy within the school and encourages a scofflaw attitude among college officials; it papers over the real social problem of why so many African Americans and Latinos are academically uncompetitive; and it gets states and schools involved in unsavory activities like deciding which racial and ethnic minorities will be favored and which ones not, and how much blood is needed to establish group membership — an untenable legal regime as America becomes an increasingly multiracial, multiethnic society and as individual Americans are themselves more and more likely to be multiracial and multiethnic (starting with our president).]  Crucially, affirmative action ought not to be framed as a zero-sum game where the admission of an African-American or Hispanic student constitutes the replacement of more qualified Asian-American student.  [That may be “crucial” but it’s also obviously false.  Admissions IS a zero-sum game, and less qualified people ARE being admitted over more qualified people.  If preferences weren’t being given on the basis of race, there would be no issue, and certainly no legal issue.] This wrongheaded narrative ignores, among other considerations, the fact that legacy students and others are also granted preference in the admissions process.  [This is what is called “changing the subject.”  The fact that there exist preferences for nonracial reasons has nothing to do with whether racial preferences — which are uniquely ugly and divisive and are the explicit subject of legal prohibitions — are wise or fair.]

Rather than pitting minorities against each other, the greater scrutiny that Harvard is undergoing should shed light on the mechanics of admissions for the sake of transparency. [The fact is that some minorities ARE being discriminated against in favor of other minorities.  This may be inconvenient for the Left’s narrative, but it’s a fact.  It’s also an important fact, because it underscores one of the problems (already noted above) with using racial preferences in a country that is increasingly multiracial and multiethnic.] For instance, one study found that Asian-Americans require 140 more SAT points than white peers to gain entry to private colleges. While statistics like this one may very well be benign, it deserves more attention to counter claims of discrimination.  [It’s unlikely that these statistics are “benign”; it’s also the fact that similar statistics can be deduced for discrimination against non-Hispanic whites vis-à-vis African Americans and Hispanics.]

This lawsuit is a chance for Harvard to reexamine its ambiguous criteria for “well-roundedness” and potentially refine the way it thinks about affirmative action. The current policy may fail to take into account significant variations within race — grouping dozens of countries and cultures into a generalized whole, or overlooking patterns of socioeconomic privilege among individuals.  [True enough.  But these “groupings” are now a favorite tool of the Left, not Right, in distributing privilege.  Hey, here’s a wild idea:  What if we ignored all groupings — and dispense with trying to correct this by coming up with better subgroupings — on the basis of skin color and what country someone’s ancestors came from, and instead judged each person as an individual?]  As Harvard further scrutinizes its admissions policies, we hope that it will find nuances to reconsider. [There’s a time and place for nuance, and there’s a time and place for bright lines.  Racial discrimination falls in the latter category: Just don’t do it.]

Stakes Are High for Both Candidates

The stakes couldn't be higher for both presidential candidates Sunday when they meet for their second debate. Hillary Clinton is up in national polls and in most battleground states after Donald Trump's disastrous meltdown in their first debate, but voters are still less than enthusiastic about her. However, the bigger challenge is Trump's: He has to come across as knowledgeable, temperate and empathetic, qualities he has yet to demonstrate in more than a year of campaigning. And the town hall format is likely to highlight weaknesses for both candidates.

Trump feeds off big, adoring crowds, but put him in a room half-filled with skeptics and he's likely to get testy. Trump's style is never to try to woo people who might disagree with him. He's always preaching to the choir. If you already think China and Mexico are stealing your job and ripping you off, Trump will magnify your anger and resentment with his booming voice. If Mexicans and Muslims make you nervous, Trump will promise to deport many of the former and make sure fewer of both groups gain entry. But if you're looking for real policy solutions to big problems, Trump can only mouth bombastic sound bites. He'd build a wall and make Mexico pay for it. He'd slap a 45 percent tax on Chinese goods. He'd engage in "extreme vetting" of foreign visitors. Don't ask him how he would accomplish any of this; he hasn't gotten past the applause lines.

Clinton's problem is the flip side of Trump's. She can give you a 10-point analysis of any issue and come up with a detailed solution, which usually involves more government spending paid by higher taxes on the rich. But Clinton also has a big problem appealing to one voting bloc she needs to do better among if she is to win -- namely, whites. Clinton trails Trump among whites, by an average of 13 points in an analysis by FiveThirtyEight, though she does much better among those whites with a college degree. Trump spends a lot of time insulting nonwhites, whose votes he most likely would not win even if he adopted a different tune. But his electoral strategy doesn't depend on winning Latino, black or Asian votes. Clinton, on the other hand, can't seem to resist painting whites as bigots, even if they don't know it. In the first debate, she answered a question about police shootings of black men by saying, "I think implicit bias is a problem for everyone, not just police." Lines like that rankle many of the very voters she needs.

Beyond the substance of the debate, the setting isn't likely to flatter either candidate, but it may be especially challenging for Clinton. Each candidate will sit on a tall stool while the other is speaking, but how do you pick a stool height that suits both a 6-foot-3-inch man and a 5-foot-5-inch woman? And if Trump invades Clinton's space, as Al Gore infamously did in the 2000 town hall debate, he'll look like a bully. If Clinton stumbles, she'll feed into conspiracy theories about her health.

But the biggest challenge for both candidates will be the audience. Will Trump face questions from an immigrant who came to the U.S. illegally as a child but has done everything right while here, graduating from high school and maybe even college -- someone who might face deportation if Trump were to be elected? Will Clinton face a voter who can't square the fact that a U.S. ambassador and three others died at the hands of terrorists in Benghazi, Libya, with Clinton's early assertions that an anti-Islam video sparked the violence? Will members of the audience dare to demand Trump's tax records or tell Clinton they don't fully trust her? And how will the audience react if Trump makes good on his promise to bring up Bill Clinton's infidelities in this debate?

Debates rarely win or lose elections. But in this volatile year, when most voters share at least some unease about the candidates they must choose from, a bad debate performance might just tip the balance. If Clinton stumbles, literally or figuratively, she'll lose some of her recent momentum. And if Trump does as poorly in this format as he did in the first, don't bet he'll even show up for the third debate.

A conservative successor to Justice Scalia?

The Supreme Court will be back in a week or two, so I thought this would be a good time to share with you an essay I did over the summer and at the request of the website SCOTUSblog:

I’ve been asked to discuss what will happen in the area of racial preferences – a.k.a. “affirmative action” – if Justice Antonin Scalia’s successor is a conservative.

Well, since Justice Scalia was a conservative, then what will happen is basically what has been happening. The new Justice will line up with Chief Justice John Roberts and Justices Samuel Alito and Clarence Thomas, who are pretty much categorically opposed to such discrimination, and will be in opposition to Justices Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor, who can be counted on to defend politically correct racial preferences more or less categorically. And so it will continue to be a Kennedy Court.

And so, as well, we will continue to have to predict what Justice Anthony Kennedy would do in this area. This has always been a tricky business, and even trickier now after his surprising decisions the last two years in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project and the second Fisher v. University of Texas at Austin, in which he joined with the liberals after years of voting with the conservatives (albeit sometimes with narrowing concurrences).

There are those, on both left and right, who read Justice Kennedy’s recent decisions as showing that he is no longer a conservative on issues like affirmative action and its close cousin, disparate impact. Those decisions were certainly a great disappointment to conservatives like me, but the hedging that Justice Kennedy included in them provides some silver linings (discussed here and here) that make me reluctant to write him off as a lost cause quite yet.

More broadly, the bad news is that the use of racial preferences remains too common.  The good news is that such preferences are mostly concentrated in the three areas of contracting, employment, and higher education.  And the further good news is that there is reason for hope in each area if Justice Scalia’s successor rejects them.

Three areas

In government contracting, for example, the Court has already established that preferences will be subjected to strict scrutiny, whatever level of government is involved.  It is unlikely to recognize a compelling interest here other than remedying discrimination, there being no uniquely African-American perspective on, for example, how to pave a road.

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

Accordingly, the Court should make clear that, in 2017, the narrowly tailored way to remedy discrimination in the award of government contracts will not involve preferential treatment. Recall that Justice Kennedy, in the Fisher cases, emphasized that the “narrow tailoring” requirement is to be taken seriously.
Employment is like contracting in that the Court has never recognized a “diversity” rationale (nor is it likely to do so, since the key federal statute, Title VII of the 1964 Civil Rights Act, allows no “bona fide occupational qualification” for race).  Once again, the predicate is essentially remedial, requiring an employer that wants to use preferences to show a “manifest imbalance” in a “traditionally segregated” position.  One hopes that, sixty-two years after Brown v. Board of Education and fifty-two years after the 1964 Civil Rights Act, there is not much traditional segregation left – especially at companies that have cheerfully been discriminating in favor of “underrepresented” minorities.

The Ricci v. DeStefano decision in 2009 now further suggests that an employer’s track record of discrimination against, say, Latinos has to be so bad and so recent that, if it did not provide them a preference, there is a “strong basis in evidence” that it could be successfully sued for that failure – a very high bar.  If, per Ricci, an employer cannot legally engage in disparate treatment unless there is a strong basis in evidence that it would otherwise lose a Title VII lawsuit, why should it be able to engage in disparate treatment when it is not motivated by fear of a Title VII lawsuit at all?

So what’s needed in the employment area is for the Court to clarify the remedial predicate required by Title VII, and to interpret the legal standards in Steelworkers v. Weber and Johnson v. Transportation Agency to conform with the one articulated in Ricci.  Any employer that wants to use otherwise forbidden disparate treatment must have “a strong basis in evidence” that it would otherwise be liable, and that evidence would typically include not only severe statistical disparities (“manifest imbalance”) but also recent discriminatory practices (“traditional segregat[ion]”). This is similar to the standard Justice Sandra Day O’Connor supported in her concurrence in Johnson.

Or the Court could simply overturn Weber and Johnson, since those much-criticized and unstable opinions also held that preferences cannot “unnecessarily trammel” the interests of nonpreferred employees – and, in 2017, there will never be a situation where the “necessary” way to fight discrimination is through more discrimination, rather than simply stopping discrimination.  The decisions are now obsolete by their own terms. I note again that Justice Kennedy has in past cases emphasized the importance of putting real teeth in “narrow tailoring.”

It is the third and remaining area, higher education, where perhaps the Court now has the most heavy lifting to do.  There’s no way around the fact that, to end racial preferences here, it must overturn Grutter v. Bollinger and, in particular, the holding there that the educational benefits of racial diversity in a student body are so compelling as to justify discrimination in order to ensure them.  The fundamental problem in Grutter is that the social-science evidence cited is uncertain and the purported benefits only marginal; furthermore, the Court did not weigh the heavy costs of such discrimination.  In his opinion in a more recent case involving the alleged educational benefits of diversity, Parents Involved in Community Schools v. Seattle School District No. 1, Chief Justice Roberts nodded toward such benefits being “dispute[d]” and “intangible,” while “the costs are undeniable.”

Surely all this has to be weighed in determining if the asserted interest in compelling.  The result will simply move up by a few years Grutter‘s self-imposed 2028 expiration date.

But the obvious question is whether Justice Kennedy would be willing to overturn Grutter when he was not even willing to rule against the University of Texas in Fisher II. It certainly is an uphill battle, but not necessarily a hopeless one.

Grutter was not directly challenged in the Fisher cases, and of course we are not yet at its twenty-five-year expiration date. The social science evidence is changing – consider the overwhelming documentation now of the “mismatch” problem – and the demographics of the country are, too. One of the cases in the lower-court pipeline directly involves allegations of politically correct discrimination against Asian Americans, the fastest growing racial group in America. Perhaps this context would be a better one in which our new Justice could persuade Justice Kennedy that, you know, Tony, it’s simply untenable in our increasingly multiracial and multiethnic society for our major universities to be sorting people according to skin color and national origin and treating some better and others worse depending on which silly little box gets checked.

The unrest on our campuses is very much a two-edged sword as well. It might frighten Justice Kennedy from ending racial preferences; on the other hand, it underscores the poisonous effects that political correctness and identity politics have had on campus, and argues for an end to the Court’s complicity in this nonsense.

Voting and disparate impact
A couple of other points, related to one another.  We could plausibly add voting, and especially redistricting, as a fourth category in which racial preferences are common.  In particular, Sections 2 and 5 of the Voting Rights Act have been frequently used to require racial gerrymandering designed to advantage minority voters.  This is done through a “results” and “effects” test, respectively.  Each is an example of a “disparate impact” mechanism, which is also found in Title VII of the 1964 Civil Rights Act (and, allegedly, in some other federal statutes, and, inarguably if illegally, in a variety of federal regulations).  Practices, procedures, and selection criteria that are nondiscriminatory by their terms, intent, and application are nonetheless deemed discriminatory because they lead to racially disproportionate results.

Thus, this approach, in the name of nondiscrimination, bans selection devices that no reasonable person would label as discrimination, and, what’s worse, drives many public and private actors to adopt either overt or covert racial quotas.

So, when the Court finishes getting rid of overt racial preferences in contracting, employment, and higher education, it can also strike down the disparate-impact approach as a form of racial preference.  Justice Scalia signaled his willingness in this regard in his separate concurrence in the Ricci case, and in a footnote in his opinion for the Court earlier in Alexander v. Sandoval. His conservative successor would do the same. Here again, though, the fifth vote would have to be Justice Kennedy’s, and, after his opinion in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, it cannot be counted on.

The Court has already effectively, and rightly, ended the use of Section 5 and its “effects” test; likewise, it should cabin the “results” test under Section 2 so that it focuses as much on disparate treatment and as little on disparate impact as possible. It’s remarkable that, though the “results” language was added in 1982, there has been very little case law to date, especially from the High Court, on its meaning outside the redistricting context.

Sex and a smile

I’ve focused on race here, but much of what I’ve written applies to sex discrimination and preferences as well. I’ll add only that a conservative successor to Justice Scalia would interpret the word “sex” in federal statutes like Title IX of the 1972 Education Amendments and Title VII to mean “sex,” and would reject the absurd arguments that it means “sexual orientation” or “gender identity.” If Congress wants to amend those statutes to read that way, that’s its job, not the Court’s.

A final, happy note: If a conservative replaces Justice Scalia, we can deduce that Hillary Clinton is not President of the United States and that someone else is. This means that there is a chance that there will be other conservative appointments to the Court, although it is also possible that future picks might be Donald Trump’s sister or Donald Duck. There is also a chance that future oral arguments will be held in the Huge Trump Courtroom at the remodeled Old Post Office Building. It also means that we are living in an alternative universe, in which SCOTUSblog may pay me a gazillion dollars for this essay and I can happily retire to a luxurious condo on a distant planet.

How to Discriminate Correctly, in One Sentence

The Left’s view is that “systemic racism” and “institutional racism” and “implicit bias” are all bad except that it is all right to discriminate systematically and institutionally and explicitly against whites and Asian Americans, and in favor of African Americans and Latinos, where the latter two are “underrepresented” in, say, Ivy League admissions or in Silicon Valley, but it is not all right to discriminate against Asian Americans, let alone anyone else, and in favor of whites, period, and so it is also all right to have, say, contracting discrimination programs that discriminate against whites and in favor of African Americans, even if such programs end up also discriminating against other minorities, even Latinos, although you do have to be careful because it might make African American activists mad if those programs give preferential treatment to LGBTQ firms, but the good news is that even if all this civil rights and social engineering ends up actually hurting African Americans that really doesn’t matter — and please don’t make me have to explain all this to you again. 

Setting Straight the Chronicle of Higher Education  In this regard, it is no surprise that some of the worst offenders are in academia, where achieving “faculty diversity” is the order of the day.  After reading article after article on this topic in the Chronicle of Higher Education, I wrote this response, which CHE was kind enough to print:

In themanyarticles that you publish on faculty diversity, there are two recurring problems.

The first is that it is seldom acknowledged that weighing race, ethnicity, and sex in employment selection and promotion is illegal under Title VII of the 1964 Civil Rights Act. Perhaps people assume that, because the Supreme Court has recognized a “diversity” exception to the ban on racial discrimination in student admissions, the same exception must also be available in faculty hiring. But this is not true. A different federal statute is involved, and the Supreme Court has never recognized a “diversity” exception to it (and is unlikely to because, among other things, the statute explicitly provides no “bona fide occupational qualification” with regard to race). I discussed this in greater detail a decade ago in The Chronicle.

This brings us to the second recurring problem: If you begin with the aim of increasing faculty diversity — that is, achieving a predetermined racial/ethnic/gender result — you are already on thin ice, since even if all you do is choose neutral criteria with such a discriminatory aim, you are still discriminating. This is obvious if you put the shoe on the other foot, and consider what the reaction would be if a school decided to select criteria and procedures with the aim of hiring more white males. Legal problems aside, isn’t anyone bothered by the fact that, if you choose people or criteria with any aim other than merit, you are going to have less merit, and so our schools’ research and teaching will be worse? This means, in turn, that the world will be worse off, assuming that research and teaching have something to do with the real world.

General Mills’s New Product: Quota-O’s –   And it’s not just academics and government bureaucrats who buy into this nonsense, alas, but big companies, too. 

Here’s an example:  The Star Tribune reports that General Mills “is pressuring ad agencies to hire more women and people of color by imposing a diversity benchmark,” so that “the creative departments in agencies bidding for its business [will] be staffed at least half by women and 20 percent by people of color.” General Mills executives said, according to the report, that “they want the people who create its advertising to be more reflective of the people who consume their products.” A General Mills spokeswoman was quoted: “We’ll get to stronger creative work that resonates with our consumers by partnering with creative teams who understand firsthand the diverse perspectives of the people we serve.” 

Translation: To figure out how best to sell a box of Cheerios to a black woman, you really have to be a black woman. That’s nonsense, and the real motive here is just the pressure to be politically correct.

The resulting discrimination cannot be justified.  It’s certainly not moral to treat people differently because of skin color; there’s no empirical or historical evidence that, say, the Phoenicians would have been better traders if only they had had greater ethnic diversity; and it’s not logical to suppose that women cannot imagine what might appeal to men or vice versa. I discuss these problems in the broad context here.

But I’m a civil-rights lawyer so let me also point out the legal problems. Certainly it will violate the law for ad agencies to accede to General Mills’s pressure. As always, it’s helpful to put the shoe on the other foot: Could an employer refuse to hire black sales clerks on the grounds that its customers hated to deal with black people?  Of course not, and it wouldn’t matter how stubborn or wealthy the customer was, and of course no judge would care about exploring the reasons for the customer’s desire for discrimination. There’s no “bona fide occupational qualification” for racial preferences under Title VII of the 1964 Civil Rights Act, which prohibits employment discrimination.

Is General Mills itself violating the law? Putting aside Title VII for a moment, there certainly seems to be a problem under 42 U.S.C. 1981, which makes it illegal to engage in racial discrimination in entering into contracts. And I don’t know if one can be held liable for conspiring to violate Title VII or pressuring someone to do so, but that’s exactly what General Mills is doing. 

Intriguing Suggestion from a Reader:  Along these lines, finally, a fellow opponent of racial preferences recently wrote to me and suggested that a letter like this be sent to corporate presidents who loudly “celebrate diversity” at their companies:

Dear Fortune 500 CEO:

            As you probably know, we have recently established the Patrick Chavis Affirmative Action Awards. We believe that you qualify for this prestigious honor. The award honors Fortune 500 CEOs whose personal physicians and/or attorneys are affirmative action admits. Given your and your company’s strong support for affirmative action we are confident you and nearly of your counterparts have such physicians and/or attorneys. If either your personal physician or attorney was an affirmative action admit, we will mail you a check for $1,000.00. If both are, we will mail you a check for $2,500.00 (As you can understand, we will be unable to give awards to individuals who serve as their own physician or attorney or those who have chosen a physician or attorney after the date of the announcement of the award.)

            We have enclosed the appropriate forms and look forward to receiving your application. We urge you to return the forms promptly because there is, unfortunately, only a limited amount of money for the award, and most of your counterparts will qualify. As a consequence, we will be choosing winners on a first come, first awarded basis.

            Thank you for your consideration.


P.S.  In the utterly unlikely situation that you and your company oppose affirmative action, we will send you a check for $2,500.00. In this case, please contact our office for the appropriate forms.

Not a bad idea!

Age Matters for Clinton and Trump

In March 2015, I wrote a column suggesting Hillary Clinton was too old to run for president. It generated a lot of blowback, as I suspected it would, even though she hadn't yet formally announced her candidacy. Carter Eskew, who ran Al Gore's media campaign in 2000, berated me in The Washington Post for "the sexist and ageist nature" of what I had written and called it "remarkably outrageous." But Clinton's recent bout of pneumonia and episodes of appearing to lose her balance in public raise important questions, and age should not be off-limits as a topic. To be clear, the same concerns apply to Donald Trump -- in my view, even more so.

No matter who wins the election this year, we will be getting a president not in his or her prime. Why do we have to pretend that age doesn't matter anymore -- that 70 is the new 60 or even the new 50? Yes, we're living longer, but our bodies and minds deteriorate over time, no matter how well we take care of ourselves.

I say this as a 69-year-old woman who eats well, walks 4 or 5 miles nearly every day, works long hours, travels 75,000 miles a year, writes prolifically and is in generally good health. But I can't pull an all-nighter working on an article as I did even a few years ago or do a 10-mile mountain hike without paying the consequences.

It is foolish for most people my age to pretend they have the same energy, stamina or capacity they did when they were young. There are exceptions -- athletes and fitness fanatics, perhaps -- but neither Clinton nor Trump falls in those categories, which is why it is so important that both of them release their medical records. Clinton, despite hiding her pneumonia from the public for several days after it was diagnosed, has been far more forthcoming than Trump. She's released a list of her medications and details about her history of hyperthyroidism and deep vein thrombosis, as well as information on a concussion she suffered while secretary of state.

Trump, on the other hand, has given virtually no useful information. On Thursday, he pulled a typical Trump public relations stunt by going on "The Dr. Oz Show," releasing the barest of details about his health but not the actual medical records.

Campaigns are grueling, and it's no wonder Clinton became ill, especially at her age. According to the National Institute on Aging, "a lifetime of stress on our bodies is thought to contribute to immunosenescence," or the gradual deterioration of our immune systems' ability to respond to infections or receive protection through vaccinations. Clinton was vaccinated against pneumonia, according to her doctor, but she got it anyway, which suggests her immune system didn't respond as well as might a younger person's.

But if Clinton's age is a factor, Trump is even older and is hardly a fit specimen. So why hasn't Trump become ill on the campaign trail? Maybe he has. Who knows? He's not the same kind of retail politician as Clinton, and his schedule has been lighter than hers. He takes days off from campaigning, travels in luxury and infamously dislikes shaking hands (though he seems to do it more often now than in the primaries). Maybe he is as healthy as he claims to be, but his late-night tweets, his repetitive speech patterns, his apparent inability to learn anything about public policy, his memory lapses -- even about his own statements -- his paranoia and his conspiracy theories all raise at least the possibility that he's suffering some cognitive decline. Given the choice between a candidate who is physically less robust and one who's declining mentally, I'd say the latter is scarier.

The Constitution bars candidates below the age of 35 from running for president, and no one complains. Maybe it's time we think about upper limits, as well. Nearly three-quarters of S&P 500 companies have mandatory retirement policies in place for their corporate directors, and about a third of big corporations set upper limits on the age of CEOs, as well. Although a 1986 law prohibits employers from forcing retirement because of age, important categories are exempt, including airline pilots, air traffic controllers and law enforcement officers. The presidency is certainly more complex and demanding than any of those jobs.

The 25th Amendment provides for the removal of a president who becomes incapacitated, but is it really so outrageous to consider whether we need to put a cap on the age at which a president can be sworn in, too? It's just hubris to pretend age is totally irrelevant to the ability to do the job. Sure, the voters are capable of deciding the issue in most elections. But this time around, they really have no choice.