Center for Equal Opportunity

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

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Stop the Balkanization

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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