Obama Administration Follies | Center for Equal Opportunity

Recently the Obama administration’s Department of Education published a notice in the Federal Register, soliciting applications for the award of a new program: “The objective of this program is to support a Center for the Study of Distance Education and Technological Advancements at an institution of higher education … to study and develop best practices in postsecondary education for online education and the use of technology-based teaching and learning tools.” Okay, but then the notice goes on to state that, if a school is more than 85 percent white, then it is not eligible. Period.

As discussed here on an excellent new website, “The New American Civil Rights Project,” this is clearly illegal and unjustifiable. The administration’s Federal Register notice, by the way, gives no explanation for the discrimination, nor, of course, any legal justification for it. This absolute racial requirement is not given “strict scrutiny,” which is what the Supreme Court demands for race-based classifications, but absent-minded non-scrutiny.

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Here’s another eyebrow-raiser from the Obama administration. In a recent case, the Justice Department socked a landlord for $80,000 because it was too strict in the rules it had for unsupervised children playing in common areas (rules adopted, apparently, after “my plants got destroy [sic], rocks in the pool & dirt, sprinklers broken, Tree branches broken, grass damage,” to quote the landlord). This, we are told, is discrimination in violation of the Fair Housing Act.

So, it’s not illegal discrimination to bar a school from participation in a federal program because of the school’s racial makeup, but it is illegal discrimination for a landlord to tell tenants that children playing in common areas have to be supervised. Sure, that makes sense.

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The administration’s Equal Employment Opportunity Commission last month issued new “Enforcement Guidance” on “Pregnancy Discrimination and Related Issues,” and it asserts that “disparate impact” causes of action may be brought in this area under federal law. Under the “disparate impact” approach a practice that is nondiscriminatory on its face, in its motivation, and in its application is still illegal discrimination if it has a disproportionate result. In this case, for example, if an employer had lifting or mobility requirements that were harder for pregnant women to meet than other employees, he could be held liable.

I’d just like to flag the fact that, once upon a time – when I was there – the U.S. Department of Justice took a contrary position, as discussed in this majority opinion and dissent from a federal court of appeals. The Supreme Court, to my knowledge, has not resolved this issue.

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The Obama administration has also indicted a Canadian businessman for fraudulently claiming that he met federal goals for using minority- and female-owned subcontractors when, in fact, he hadn’t. Fraud is wrong, but there’s an obvious defense here, isn’t there? Simply claim that Canadians are an ethnic minority group, and that, while physically a businessman, this defendant identifies him/herself emotionally and psychologically as a businesswoman (see next item). Sure, it’s silly, but no sillier than the underlying federal program.

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Charlie A. Dooley, the county executive for St. Louis County, Missouri, has apparently decided to follow President Obama’s example, and simply sign an executive order when the legislature (in his case, the county council rather than Congress) won’t do his bidding. He then vetoed a subsequent bill because he didn’t like it as much as his executive order.

The executive order he has signed is Obama-esque in its content, too, setting percentage “goals” (read “quotas”) by race for county contracting. What’s even more bizarre, though, is that the reason given for his contracting preferences is to increase workforce “diversity.” That raises all kinds of additional constitutional problems and factual questions:

1. Has it been shown which groups are underrepresented in which workforce?
2. Has it been shown that all the companies being given contracting preferences have more underrepresented workers than all the companies that aren’t being given contracting preferences?
3. Of course, racial preferences in this context can be used only to remedy discrimination, but has the underrepresentation of some groups in the workforce been shown to be caused by discrimination?
4. And even if the answer to 3 is “yes,” are there no better ways to remedy the discrimination than the roundabout method of giving contracting preferences (especially if the answer to 2 is “no”)?

Another nice touch: The executive order defines the various favored racial “minorities” to include those who “Maintain cultural identification through tribal affiliation or community recognition with any of the original peoples of the North American continent, or demonstrate at least one-quarter descent from such groups.”

Mr. Dooley faces a primary vote this week, by the way, and it’s speculated that what we have here is some racial politicking by him.

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Finally, this story in the Boston Globe last week discussed a recent survey that resoundingly confirms the conventional wisdom of Massachusetts as a very liberal state – with one notable exception. “Amid those liberal tendencies, though, was an outlier: a stark opposition to affirmative action. Just 24 percent agreed that qualified minorities should receive special preference in hiring and education, while 69 percent disagreed.”

This is no surprise, really: Poll after poll shows that Americans just don’t like policies that discriminate on the basis of race. Go figure.

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