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Trump's Self-Fulfilling Prophecy

Donald Trump has predicted there will be riots in the streets if he is not crowned victor at the Republican National Convention in Cleveland this summer. Given his exhortations to his supporters to "knock the crap out of" anyone disrupting his rallies and his promise to "pay for the legal fees," I'll take him at his word. Trump's comments are what sociologist Robert K. Merton called a self-fulfilling prophecy: "a false definition of the situation evoking a new behavior which makes the originally false conception come true." Trump likes to play the tough guy, and his rallies have become a gathering place for those attracted to his strongman image, including some who think you silence dissent with a sucker punch.

I have had my share of dealing with protesters, including some who threatened or engaged in violence. In 1991, I was punched by a male protester as I was leaving Hostos Community College in the Bronx. I think he was aiming at my jaw, but it landed on my shoulder, leaving a visible bruise. I had been scheduled to give a speech on my new book, "Out of the Barrio: Toward a New Politics of Hispanic Assimilation." But when I arrived at the venue, the school's administrator told me that he couldn't guarantee my safety or that of the students because a group of radical Puerto Rican demonstrators were armed "with eggs and who knows what else" if I "insisted" on taking the stage.

I considered my options. I'd never backed out of giving a speech before, even when faced with threats on my life. I regret that I caved in to the administrator's wishes -- which denied the students the opportunity to judge for themselves whether I was the racist, anti-Hispanic Hispanic that radical professors and protesters claimed I was. But at least I was the only one who got hurt.

Every other time I've faced protests, even threatening ones, I've held my ground. I reckon I've done this some two dozen times over the many years I've been in public life. The same year as the Bronx fiasco, I was invited to give the commencement speech at the University of Northern Colorado and then disinvited when Hispanic students occupied the college president's office. I gave the speech I had intended at my alma mater, the University of Colorado in Boulder, instead; but there, too, I was met with hecklers, and the university turned over the campus quadrangle to protesters, who launched an anti-Linda Chavez "speak-in."

At the University of Illinois, protesters armed with coconuts (brown on the outside, white on the inside, get it?) stood at the back of the auditorium menacingly and then smashed them on the stage after I spoke. I've had to hire off-duty police to accompany me on some campuses and register in hotels under false names, as well. But never once have I called on my supporters to silence the protesters, much less to mete out their own violence in response to threats against me.

Donald Trump, on the other hand, seems to believe that the way you deal with dissent is to crush it -- not with more compelling ideas or more reasoned speech, not with dignity in the face of foul threats but with punches that will see the protesters "carried out on a stretcher" as they were in the "old days." His models are Bull Connor, Deng Xiaoping, even Kim Jong Un, the latter two of whom he praised as strong leaders adept at dealing with problems.

We are facing dangerous times ahead, certainly the worst presidential election since 1968. Radicals on the right and left could well turn this summer into a bloody one. In 1968, the riots basically handed the election to Richard Nixon. It is impossible to know what will happen this year. But one thing is sure: If Donald Trump keeps predicting violence, he's likely to get it -- and the results for our country will be ugly.

Mrs. Reagan's Legacy

Nancy Reagan's death marks the final chapter in what was one of the greatest love stories of all time. The role of political spouse is not an easy one, but Mrs. Reagan managed her role brilliantly. She had her critics -- most notably former White House chief of staff Donald Regan, who accused her, unfairly in my view, of meddling and using astrology to try to steer the president's course -- but her only priority was protecting the president. I served on the senior staff of the White House in Ronald Reagan's second term as director of public liaison, at the time the highest job held by a woman. My interaction with Mrs. Reagan was minimal -- a few social occasions -- but I was close enough to witness the bond that existed between them.

President Reagan always seemed to me a very private man, despite his outward ease with people. As his published love letters to Nancy made clear, she was the one person whom he trusted completely. She was his rock. "There would be no life without you nor would I want any," the president once wrote her. When you saw them side by side, you could feel their connection. It wasn't just the way she looked at him, a gaze that drew much snide ridicule from their detractors. If you looked at the president with Mrs. Reagan next to him, you felt as if she was his guardian angel. There was an invisible wall around them that kept everyone else at bay.

The only time I glimpsed them in a private moment was during a Christmas party for the White House staff. It was late in the evening, and I had slipped out into the grand hallway on the second floor of the White House. The Reagans were known to retire early, and sure enough, as I looked down the long red carpet, I spied Mrs. Reagan, a glass of wine in her hand, gently kicking up her high heels in rhythm to the music emanating from the next room, the president at her side. Their backs were to me, but I imagined her smiling, maybe humming along, when the president gently took her elbow and steered her toward the elevator to their private residence on the third floor. She seemed to be having such a grand time, and he seemed to be her steady hand.

Life in a fishbowl is not easy, but as the pictures of their private rooms in the White House show, Mrs. Reagan tried to create a home for her husband. They ate their meals on TV trays in the residence, the kind of relaxed California style in which they had lived their lives before the presidency. It was their cocoon, where the president could retreat from the burdens and worries that everyone who occupies that office must bear on his shoulders every day.

I doubt they talked politics. His politics were deeply rooted in a political philosophy acquired through reading and experience. He needed no one to guide him in those quarters. But you can imagine him unburdening himself to her about the tough decisions he had to make, the best way to deal with troublesome adversaries or convince skeptical allies of the right path. Most of all, however, you can imagine that she lifted his spirits when they were down, convinced him that no matter how difficult the task seemed, he was up to it.

No marriage is perfect, but theirs seemed as close to perfection as one can imagine. We don't often think of the importance of the role of first lady in terms of what she does to keep the president on an even keel. History is replete with examples of presidents whose wives were a source of distraction and sorrow for their husbands. In almost undefinable ways, however, Nancy Reagan made Ronald Reagan's legacy possible. And that is something for which the country, indeed the world, owes her a debt of gratitude.

Justice Scalia Cannot Be Replaced

Roger Clegg debates the issue of Affirmative Action at the University of Texas.

It is impossible to overstate the love that conservative lawyers for over a generation have felt for Antonin Scalia. 

When he was nominated by President Reagan to the Supreme Court in 1986, he and Robert Bork were not just the two people quickly left on the list being considered by administration officials at the Justice Department (a much younger yours truly was among them) — there was no third place on that list. As a justice, he transformed the importance given to constitutional and statutory texts, over not only over a judge’s selfish policy preferences but also over other nontextual sources like legislative history.  And not only his intelligence, but his wit and faith were legendary. 

He cannot be replaced. 

Some Thoughts on the Sanders–Clinton Race/Crime Exchange – The discussion of race during one of the recent Bernie Sanders–Hillary Clinton debates, especially with regard to crime, was disturbing but not surprising, following as it did the standard leftist script.

Senator Sanders pointed to the disproportionate number of African Americans in prison and called for “radical reform” of a “broken criminal-justice system.” The solution is less aggressive policing in black neighborhoods, he said, since after all, African Americans use marijuana at essentially the same rate as other groups, but are much more likely to be arrested for drug crimes. Secretary Clinton said, “I completely agree” with all this, called for an end to “mass incarceration,” and added that these and other, noncriminal racial discrepancies are caused by “systemic racism.” And in his response to that, Sanders said that he disagreed with nothing that Clinton had said, adding only that police departments must look like their communities (quotas, anyone?). Later Clinton referred to “systemic racism” again, and Sanders to “institutional racism.”

Three quick points: First, the dog that didn’t bark is that there was no mention, of course, of the fact that 71 percent of African Americans are born out of wedlock, and it is the implosion of the black family that is most to blame for the continuing (and in many cases growing) racial disparities in this country — in crime, poverty, unemployment, substance abuse, you name it. Second, as I discuss in more detail here, all races do not abuse drugs at the same rate and, in any event, this would tell us very little about prison disparities, since hard time seldom results from simple drug use and, besides, most imprisonment is not for drug crimes at all. Third, the simple fact is that imprisonment rates reflect crime rates, and to characterize our police and prosecutors as systematically racist is false, divisive, and demagogic, and a call for less aggressive policing is the last thing that law-abiding people in high-crime areas want.

Felon Voting in Maryland Just in Time for the Election — and Plenty of Hypocrisy – Unfortunately for the law-abiding citizens of Maryland, on February 9 the state legislature overrode Governor Larry Hogan’s veto of a bill allowing felons to register and vote the moment they are out of prison — even if they are still on parole or probation and haven’t paid any required restitution to their victims or other court costs and fines. The law will take effect in 30 days, just in time for about 44,000 felons to register and vote in the April 26 Maryland primary.

Using the usual argument of those who support allowing felons to vote as soon as they are released, Thomas V. Miller (D), the president of the Maryland Senate, said that felons are “people who have returned to society, repaid their debt to society . . .  [and] we want to reincorporate them into society . . .  We want them to be able to hold their head high, and that’s what this is all about.” But is this what it is really all about, or is it just an attempt to get more voters that favor his political party to the polls?

What Miller doesn’t mention is that under Maryland law, like other states, you don’t just lose your right to vote when you are convicted of a felony — Maryland also bars felons from owning a gun or serving on a jury. The state allows licensing boards to deny an application or impose sanctions on a current license holder for individuals convicted of “drug crimes.”

Licensing boards as varied as cosmetology and architecture are also allowed to deny or suspend the license of an applicant who has been convicted of any felony or even “a misdemeanor that is directly related to the fitness and qualification of the applicant or licensee.”

There is nothing barring the state Department of Corrections or sheriff’s offices from doing background checks and refusing to hire felons. More generally, felons can be barred from any other state employment positions that require a background check or are designated state personnel-management positions. Since you have to undergo a criminal background check to get a teaching certificate in Maryland, this means you can be denied a teaching job the moment you step out of prison — even if you can now vote.

Furthermore, state law allows landlords to discriminate against anyone convicted of felony drug crimes or any person “whose tenancy would . . .  constitute a direct threat to the health or safety of other individuals,” which may describe many felons convicted of violent crimes. Public-housing authorities like Montgomery County and Prince George’s County specifically say that they consider an applicant’s criminal history when determining their “suitability” for public housing.

If the members of the Maryland state legislature who voted to allow felons to vote immediately really believe that felons have “repaid their debt to society” and if they really want to “reincorporate them into society,” why didn’t they include provisions in this voting bill restoring all of those other rights? Are we to believe that they don’t trust a felon fresh out of prison to own a gun? That they don’t believe that felons have the judgment to serve on a jury? To work as law-enforcement officers or teachers? To live in public housing?

So even though these legislators don’t trust felons to be responsible in all of these other areas of licensing, public employment, housing, and the judicial system, they do trust that felons have the judgment to make responsible decisions in the voting booth that will affect the rule of law and specifically, the rules governing our civil society that those felons have proven they are willing to break.

Are these legislators really interested in “reincorporating” felons into our civil society? Or are they just interested in the potential votes these felons will bring?

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Last week I traveled to the University of Texas to debate the issue of affirmative action, and you can watch the event here.  And this week I’ll be traveling to Pittsburgh to talk on the same topic at a couple of events; the newspaper there ran a preview/interview with me, which you can read here.

Why I Will Never Vote for Trump

If Donald Trump wins the Republican presidential nomination, I and millions of conservatives like me will not vote for him. Some will stay home on Election Day; others will go to the polls to support down-ticket candidates in important races. We will do so fully aware that this could well mean another four years of a Democrat in the White House. Does this make us traitors or, in the favorite epithet of our detractors, RINOs (Republicans in name only)? I can only speak for myself, and I'll start with the last accusation.

The first Republican I ever voted for was Ronald Reagan in 1980. I was still a registered Democrat -- but one who had only voted for the Democratic presidential nominee in a single presidential election, 1968, as a 21-year-old college student. I voted for Reagan largely because I believed that President Jimmy Carter had weakened America's defenses and our standing in the world. I was, from my Catholic school childhood on, a staunch anti-communist, and it was clear that during Carter's presidency, communism was aggressively on the march from Asia to Africa to Latin America. I joined President Reagan's administration in 1983, still a registered Democrat, and did not change my affiliation until 1985.

For me, party has always mattered less than political philosophy. I was always a conservative on most issues, from my opposition to racial quotas to my belief that the Soviet Union was indeed an evil empire. I vote for the candidate who best represents my principles -- and since 1980, that has been the GOP nominee. I haven't always been enthusiastic about my choices, but I have at least been confident that on the big issues, the Republican nominee would keep America safer and more prosperous than the alternative.

I cannot say that about Donald Trump, who, I believe, is a danger not only to the principles I hold dear but to the nation I love. I have heard nothing from him that suggests he has either a basic understanding of our constitutional system or minimal knowledge about domestic or foreign policy.

What I have heard is personal praise for authoritarian regimes and strongmen, from Vladimir Putin to, amazingly, Kim Jong Un. "How many young guys -- he was like 26 or 25 when his father died -- take over these tough generals, and all of a sudden ... he goes in, he takes over, and he's the boss," Trump said in Iowa. "You gotta give him credit." Of Putin, Trump lavishly praised the authoritarian's "leadership" and gave a hint of how he would deal with Putin's aims to stake a claim to the old Soviet empire: "A lot of good things could happen with Russia if we get along with Russia and if they respect us."

On economic policy, Trump's only platform is to launch a trade war with our major partners that would devastate the American economy. His appeal to blue-collar workers is that he would bring jobs home from China, Mexico and Japan by slapping huge tariffs on foreign goods and would force out Mexicans and others who are working in low-wage jobs for which Americans have shown no appetite. If he succeeded in both, it would mean that the goods and services all Americans buy -- including those packing his rallies in their "Make America Great Again" regalia -- would be far more expensive and less available. As for the jobs that undocumented immigrants would vacate, do you think his supporters would be lining up to pick lettuce and tomatoes or debone chickens or scrub toilets if Trump were to launch his deportation raids?

The media have enabled him from day one to become the front-runner by giving him unlimited free time to drive ratings and are ready to call the nomination for Trump four months out. I don't think it's too late to stop him, but the next two weeks will tell. Trump has yet to get much more than a third of the Republican primary vote, but it won't matter if the 60-plus percent of people who oppose him don't unite to defeat him. This was supposed to be the year Republicans took back the White House. We had everything going in our favor, including a polarizing and deeply flawed presumptive Democratic nominee in Hillary Clinton. But no one counted on a reality TV figure's hijacking the party of Lincoln and Reagan.

The GOP can survive another presidential loss, but it cannot survive a Trump presidency. More importantly, the country itself would be at risk if Trump were to become president. I and others who will never vote for him are no traitors; we are patriots who love our country more than we do any political party.

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.

Let the Sunshine In

The Center for Equal Opportunity often makes common cause with the National Association of Scholars, an organization of conservative academics.  Recently the good folks there asked me to contribute a short piece to their publication, Academic Questions, which was weighing the pros and cons of federal and state freedom-of-information (FOIA) statutes.  Below is a slightly edited version of what is appearing in that journal.

The principal use that the Center for Equal Opportunity has made of state FOIA requests is to get information from public universities about the way that race and ethnicity are weighed in student admissions.  That includes documents that shed light on “affirmative action” and “diversity” policies, and admissions data.  CEO – through the work of Althea Nagai and the late Robert Lerner – has used the latter data as the basis for numerous studies that have documented how heavily race and ethnicity are weighed in student admissions.  Those studies can be found on our website here (scroll down).  

Relatedly, CEO has also used federal FOIA requests to see how the U.S. Department of Education’s Office for Civil Rights has handled its enforcement of civil-rights laws – principally Title VI of the 1964 Civil Rights Act – that make it illegal to discriminate on the basis of race and ethnicity in federally funded programs (which would include nearly all universities).  We have been particularly interested in how OCR has dealt with admissions discrimination and with racially exclusive programs for students (for example, scholarships and recruitment “job fairs”).

In our view, the use of FOIA in this context has many salutary effects and no bad ones.  We do not believe that racial discrimination in admissions is sound policy, and it is good to shed as much light on the practice as possible – especially since schools invariably hide and sometimes deliberately mislead about how heavily race and ethnicity are weighed.   Even if such policies are favored, it is hard to understand why they should be kept secret, particularly at public universities, and especially when there is a federal law that generally makes it illegal for the taxpayer money to be spent on discriminatory programs.  While the Supreme Court has, unfortunately, left the door ajar – for now – and allowed some weight to be given to race and ethnicity, it has limited the circumstances when it is allowed, and so FOIA requests like ours are also a good way to ensure that those decisions are being followed.

Unless “academic freedom” includes the right to discriminate on the basis of race in secret, our FOIA requests do not hinder academic freedom.

If, however, there are FOIA abuses in other, nonracial contexts, we could accomplish much of what we want without FOIA by means of other legislation we have proposed (at the state or, preferably, the federal level).  This legislation would require universities that receive taxpayer funding to report annually in detail on whether and how race, color, and national origin factor into the student admissions process.

Again:  The Supreme Court has upheld the use of race to achieve the “educational benefits of a more diverse student body” as constitutionally permissible, at least for now, subject to numerous restrictions. Even if some insist that universities should continue to practice racial discrimination in admissions, it should not be done secretly and without taking pains to satisfy the Supreme Court’s requirements.   

The U.S. Commission on Civil Rights endorsed this approach, including “sunshine” legislation, as a recommendation to the President and Congress in a 2006 report.  Likewise, Representative Steve King (R–IA) has introduced similar legislation that would require universities that receive federal financial assistance to disclose data to the U.S. Department of Education on how race, color, and national origin factor into admissions decisions.  We are hoping that such a bill will be introduced in the Senate as well.  It would be interesting to hear politicians explain why they are voting against a bill that would end secret and illegal racial preferences.  And, as Supreme Court Justice Louis D. Brandeis once said, sunshine is “the best of disinfectants.”  For more details, and for the draft legislation itself, see this link (scroll down to the heading, “Requiring Disclosure of Preferential Policies: Model Bill No. 2”).

Finally, I have to note that all of this would be unnecessary if schools would just treat people without regard to skin color or what country their ancestors came from.  And if a state’s public schools won’t voluntarily honor this principle, then the people in that state should require them to.

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Justice Scalia and “the little guy” – Those on the left like to pretend that they want justices who stand up for “the little guy.”  But it ain’t necessarily so, as George Leef explains here, noting that cases involving eminent domain, school choice, gun rights, and compulsory union dues usually have the anti-Scalias on the side opposing the interests of the little guy.  I should note that Mr. Leef is another frequent ally of the Center for Equal Opportunity. 

Along these lines I’ll add my own favorite Scalia dissent, in Johnson v. Transportation Agency, a case where the Court majority upheld a government affirmative-action program. 

That dissent concludes with this paragraph: 

It is unlikely that today’s result will be displeasing to politically elected officials, to whom it provides the means of quickly accommodating the demands of organized groups to achieve concrete, numerical improvement in the economic status of particular constituencies. Nor will it displease the world of corporate and governmental employers (many of whom have filed briefs as amici in the present case, all on the side of Santa Clara) for whom the cost of hiring less qualified workers is often substantially less — and infinitely more predictable — than the cost of litigating Title VII cases and of seeking to convince federal agencies by nonnumerical means that no discrimination exists. In fact, the only losers in the process are the [plaintiff Paul] Johnsons of the country, for whom Title VII has been not merely repealed, but actually inverted. The irony is that these individuals — predominantly unknown, unaffluent, unorganized — suffer this injustice at the hands of a Court fond of thinking itself the champion of the politically impotent. I dissent.

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Finally, the Chronicle of Higher Education had a long article last week that extolled the successes of Historically Black College and Universities (HBCUs) in the graduating students with majors in the STEM (science, technology, engineering, and mathematics) disciplines.  But here’s my posted response:

It is surprising that the word "mismatch" does not appear in this article.  It has been repeatedly demonstrated by critics of racial preferences in university admissions that the resulting mismatch of students and institutions commonly sets up African American students for failure, especially in the STEM disciplines.  It is no surprise, then, that a disproportionate number of successful African American students in this area attend HBCUs, where racial preferences favoring black students are generally not used and where, therefore, the mismatch problem is absent.  See, for example, this paper

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.

Not All Elections Are Democratic

As messy as this year's U.S. presidential election seems in the midst of the hard-fought nomination battle in both parties, no one questions that the voters will decide. Anyone wishing to run who meets the basic qualifications of being a natural-born citizen at least 35 years old can put his or her name before the voters. Those supporting a losing candidate may not like the results, but we can't question that we've been given a fair chance in the process. The same can't be said for elections taking place Feb. 26 in Iran, which will effect not only the people of Iran but Americans as well, after the disastrous agreement on nuclear weapons reached by the Obama administration with the current regime.

Iranians go to the polls Friday to select members of the 290-member Islamic Consultative Assembly -- the nearest thing Iran has to an actual parliament -- and for the 86-member Assembly of Experts, which is nominally tasked with selecting the Supreme Leader. Iran's system, despite the facade of elections, is anything but democratic. Its constitution provides for a "Guardian Council" made up of six theologians and six jurists, appointed by the Supreme Leader and the Supreme Leader-appointed chief jurist, respectively. The Guardian Council's purpose is to ensure that any laws passed by the consulting assembly are compatible with Islam as interpreted by the Guardian Council. There is no separation of powers as we know it; it is essentially a system where one man rules: namely the Supreme Leader, the Ayatollah Ali Khamenei.

Nonetheless, as in most totalitarian systems, the government desperately seeks legitimacy in the eyes of its own people and the world, which is why sham elections take place. The illusion that the people have a role to play helps keep dissent in check, though, as we saw in 2009, when obvious vote-rigging occurs the people protest. But those protests were met with violent crackdowns. And in the face of total abandonment of democratic forces in Iran by the West, especially U.S. President Barack Obama, their protests led to little change.

Friday's elections are guaranteed to produce the results the ayatollah wants. Initially, more than 12,000 individuals registered as candidates for the 290 parliamentary seats. But unlike in a democracy, those candidates don't go through a vetting process by the people to winnow the field; instead, the Guardian Council approves a five-member team to consider the eligibility of candidates. In order to qualify, candidates must "believe and adhere to Islam and the sacred system of the Islamic Republic in practice." These positions "belong to Hezbollahis and revolutionary and committed individuals," according to a statement by the secretary of the Guardian Council in October 2015. In other words, they must be in line with the regime, which brooks no dissent or argument.

As a result of the Guardian Council's role in selecting who will actually appear on the ballot, half were disqualified for the Consultative Assembly, including 50 current members who wanted to run for re-election. Of the 810 candidates for the Assembly of Experts, only 165 were approved, and not a single woman qualified.

One of the most interesting aspects of Iran's election is that it reflects a power struggle between Ayatollah Khamenei and Iranian President Hassan Rouhani. Khamenei is old and sick and will not likely last much longer in power as the Supreme Leader. He is believed to want to step down and to play the decisive role in selecting his successor, but Rouhani and former President Hashemi Rafsanjani have other ideas. While some in the West see the Rouhani-Rafsanjani faction as "moderate," the fact is neither man behaved as a moderate in office, engaging in the same extrajudicial killing and torture of dissidents and pursuing the same goal of an expansionist, nuclear-armed Iran. The fight is not so much one of ideology as it is a power struggle, with the Rouhani-Rafsanjani group seeing an opening to the West that helps the Iranian economy as consolidating their hold over the people.

In the end, nothing will change in Iran until the Iranian people can make their own choices for leadership. As the leading opponent of the regime, president-elect of the National Council of Resistance of Iran Maryam Rajavi, said, "The sham elections are merely an instrument for imposing a medieval caliphate on the 21st century." Unfortunately, the Obama administration has helped prop up that regime, which will be a greater threat to the United States in the future and will pose a major challenge to whoever ends up winning our messy, democratic presidential election.

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.

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.)


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.