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A Bogus Threat to “Desegregation”

There was a big front-page story in the Washington Post this week about a bill before the Kentucky state legislature that will, the headlines claim, “threaten” school “desegregation” in Louisville.  Hardly. 

My favorite sentence in the story:  “The threat is no longer from protestors in hoods throwing bricks at buses carrying black children into white parts of town, but from state legislators pushing a bill to return to neighborhood schools.”  Nothing but straight news reporting here, folks!  Nothing slanted or tendentious, nosiree!

Look:  There is no segregation in Louisville or anywhere else in the country, and there is no threat of it coming back.  There is not a single segregated public school in the United States, because segregation means separating children by law because of race, and everyone knows that is illegal and wrong.

What exists are racial imbalances in public schools, and those imbalances exist because of residential living patterns.  Some people, mostly liberals of course, want to end those racial imbalances by using race to assign students to schools.  The Supreme Court ruled in 2007 that Louisville’s system of using a student’s race directly was unconstitutional, so now the school district weighs race more obliquely — but alas it is still being used, as even the Post has to acknowledge in its story.  The Post also has to acknowledge that the bill’s proponents cite simply the undeniable educational, parental, and monetary benefits of letting children attend the schools closest to them.  

What the state bill here would do, then, is require a policy of neighborhood schools, not a return to segregation. So it’s the bill proponents who want to end the practice of using race to decide where children can go to school.  And it’s the proponents of “desegregation” who insist that skin color should decide what a child’s educational choices should be. 

P.S.  The Post’s home-page headline for this story is even worse than the hard-copy’s:  “School desegregation in Kentucky survived the KKK. Now a GOP bill threatens to shatter it.

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Good Bill in Utah – There’s a good bill pending in Utah, too, by the way.  As discussed here, it would end the practice of weighing a prospective judge’s race and sex when being considered by the state’s judicial nominating commissions. 

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No Deal on Reparations – I responded over the weekend to this column in the New York Times by Ross Douthat, whom I usually like, but who was proposing there that a grand bargain be struck whereby racial preferences (in university admissions and the like) are ended, in exchange for a one-time reparations payment of $10,000 for all African Americans.  Charles Krauthammer, whom I also usually like, made a similar,and similarly misguided,  proposal many years ago.
There are a many, many problems with reparations — logistical and constitutional, as well as policy — which I discussed in Congressional testimony here.

In my response to Mr. Douthat I added these points to what his column says specifically:

(a) What's the evidence that "the legacy of slavery and Jim Crow" is the problem for the "black underclass" rather than other, cultural factors, especially the fact that more than 7 out of 10 African Americans (probably 8 out of 10 or more in the underclass) are born out of wedlock?;

(b) Why in the world would you think that the Left won't return again and again and again after you make that supposedly "one time only" payment of $10,000?;

(c) How are you going to answer similar claims by Latinos, say, and American Indians, and then Asian Americans, and then Arab Americans, and then ...?; and

(d) If you have children of several different races (including white) in front of you, all of whom face some sort of privation, why does it matter if one of them can make a vague claim that the privation can be traced somehow to a unique historical wrong and, therefore, the government should care more about him than the others — especially if it turns out that child is not actually disadvantaged at all relative to the others? 

Finally, I noted that to think such a program will improve race relations is just crazy.

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“UT Not Fair” --  An organization called Students for Fair Admissions (SFFA) last week launched a new website, The “UT” is the University of Texas at Austin; the organization, a brainchild of Edward Blum, is the same one that is suing Harvard and the University of North Carolina–Chapel Hill for their use of racial preferences; and the website’s aim is to encourage students who were recently rejected by UT–Austin to “share their stories” with SFFA. And some of those stories, it is hoped, will result in another, similar lawsuit against the University of Texas.

This is the time of year when some students will start getting those dreaded thin envelopes — that is, rejection letters — from universities. And Cory Liu, who recently joined SFFA as the new volunteer executive director, notes:
Even though many Asian students grow up like myself — as the children of immigrants speaking a language other than English at home — Asian students are denied an equal opportunity for higher education because of UT’s racially discriminatory admissions process. It isn’t right, and it isn’t lawful. Our Constitution guarantees every American equality under the law, regardless of their race.

But, you say, didn’t the University of Texas just win a lawsuit against another plaintiff, Abigail Fisher, who also had Mr. Blum’s backing? Yes, but that was based on an admissions system nearly a decade old, and the Supreme Court has warned that schools are obliged to reevaluate and update their discriminatory systems frequently, to show that their use of race remains necessary and justified. And, besides, it’s important for schools to know to know that they will have to be looking over their shoulders constantly if they insist on treating applicants differently on the basis of skin color and what country their ancestors came from.

There’s no rest for the wicked.

One last note: It will be interesting to see if the Trump administration believes that part of making America great again is following the principles of E pluribus unum and character-not-color when it comes to civil rights.

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A Quota Averted – Early last week I warned thatthe White House had posted on its website excerpts from news story on an imminent executive order on historically black colleges and universities (HBCUs), timed to correspond with the end of Black History Month and the Washington visit of many of the schools’ presidents. Such an order might be fine, I pointed out, but it also might not be, and it was disturbing that the White House website chose to excerpt a part of the news story that discusses the desire of some to set numerical, percentage goals here for the federal government’s contracting and other funding.  These would be racial quotas, and I said I hoped the Trump administration would just say no.

Well, the executive order on historically black colleges and universities that President Trump  finally signed later in the week did not contain the numerical, percentage goals (i.e., quotas) for federal funding and contracting that some had been pushing for, and for that we should be grateful to the administration. Whether it is wise, or even constitutional, for the federal government to continue to single out these schools for special treatment in other, vaguer respects is a question that should also be considered. For now, though, many thanks.

Dorm Segregation in 2016: The UConn Con

It’s back-to-school time, and Michael Meyers of the New York Civil Rights Coalition and I posted this column on National Review Online last Friday.

Segregation is back. These past few weeks have seen controversy over black-student housing ads for roommates directed to “people of color” only, and over colleges and a law school that created separate class sections restricted for black students.

What is going on? It appears, alas, that public universities have formally reintroduced and made fashionable racial segregation, in the guise of creating safe spaces for “their” minority students — to endorse, fund, and foster black separatism in higher education. And that’s what the University of Connecticut has instituted with its plans to open a dormitory on its Storrs campus, where black male students will be clustered and separated from their peers of other skin colors.

But the last thing that campuses should be doing these days is encouraging racial isolation and stereotyping, along with a sense of grievance and a victim mentality. All that is certain to make race relations at our universities worse, not better.

The claim, according to University of Connecticut officials and documents obtained by us through a freedom-of-information request, is that this housing segregation will help address the lower graduation rates of its black-male students — lower as compared with male students of other colors and with women. But the social science here is iffy and laden with the paternalism, doubletalk, and the soft bigotry of low expectations whereby black men are burdened and labeled as being “at risk.”

UConn boasts that this “choice” of housing is precisely what its black-male students need and want. If so, the decades-old lament of social psychologist Kenneth B. Clark has come full circle: He observed that white racism would have gained its greatest triumph had it been able in the 1950s and 1960s “to persuade its black victims that segregation was not only acceptable but desirable in itself, and that the justification for this separatism was color alone.” Clark’s research on the effects of Jim Crow segregation was prominently cited in the Supreme Court’s landmark decision in Brown v. Board of Education, which struck down segregation on the ground that separate public schools are “inherently unequal.”

Nonetheless, UConn sought and got a grant from a private educational foundation to fund the “special” dorm. Only after criticism from us and a few others, including two members of the U.S. Commission on Civil Rights, did UConn change its public rhetoric — explaining that the dorm would be “open” to any students who identified with the African-American male experience. But there’s no doubt that racial classifications will be used and racial segregation encouraged.

Not only is this bad policy, but it’s legally dubious as well. There’s Brown v. Board of Education, of course, and the Supreme Court has put constraints on the use of racial classifications in higher education in its two rulings in Fisher v. University of Texas, a case challenging the use of racial preferences in university admissions. So it makes no sense at all for UConn to embark on this treacherous new enterprise in the meantime. 

What’s more, it’s hard to imagine what legal justification for the plan the university can plausibly offer. As noted, the origin of the program was as a means to address the (lower) graduation rates of black men. But most black men at the university do graduate, and plenty of women and non-blacks do not. So why should the non-graduation problem be addressed in a sex- and race-based way? This is not a “narrowly tailored” use of race and sex, as Fisher I and II demanded, and on this point the university will be given “no deference.”

As the Supreme Court also cautioned in Fisher I, each student is to be “evaluated as an individual and not in a way that makes an applicant’s race or ethnicity the defining feature of his or her application.” But who can doubt that this is precisely what the University of Connecticut is doing? 

UConn can’t deny what it’s doing, so its officials have clammed up. And Connecticut’s governor and UConn’s trustees refuse to intercede or even speak.

And where are the traditional civil-rights groups, such as the NAACP and the ACLU, that fancy themselves to be minorities’ advocates? Once upon a time, they vehemently opposed racial separatism in all its guises. But now they mostly tout black separatism as a viable remedy to purported white racism on campus, providing beleaguered black males “protection” and “safe” spaces — that is, spaces apart from whites and Asians and Hispanics. This surrender to racialism is a wanton betrayal of the once inviolate principles of equal access and treatment without regard to skin color.

As students head back to school, they mustn’t be directed to racially designated doors on campus or assigned to “black” dorms. That kind of racialism was outlawed long ago. It’s a lesson we thought was permanently learned, and educators ought to know better than to categorize and separate individuals on the flimsy basis of skin color.

Brown v. Board of Education …

Here’s the essay I just did this for National Review Online’s “Education Week”:

It’s depressing that, nearly six decades after Brown v. Board of Education, the legality and morality of racial discrimination in education continues to be a contested issue.

Consider: Last month the Obama administration issued “guidance” for universities on the meaning of the Supreme Court’s decision last June in Fisher v. University of Texas. The guidance predictably reiterates that the administration “strongly support[s] diversity” — including, of course, using discrimination in order to achieve it — but, as a legal matter, this is irrelevant if a school is sued, because whether in a particular case there are educational benefits stemming from such diversity is an educational judgment, not a political one.

The fact is that this “guidance” is designed not to help schools follow the law, but to push them to adopt dubious race-based policies that the Supreme Court has warned against and that have prompted lawsuits in the past, but that the Obama administration and its political allies stubbornly support. The whole tone of the new guidance is to offer encouragement to schools that want to engage in racial discrimination: The administration promises that it “will continue to be a resource” for such schools. It is as if the FBI offered eager encouragement to state and local police that wanted to engage in racial profiling without violating the law.

What’s worse, though, is that the guidance is probably telling many schools just what they want to hear: Study after study by the Center for Equal Opportunity has shown that universities across the country are only too happy to weigh race very heavily indeed in their admissions.

But, if they (and their lawyers) read the Fisher decision honestly, it ought to make them gulp and reconsider such discriminatory policies. And I should add that, in the run-up to the ruling, it became clear how increasingly unpopular and discredited racial preferences in admissions are, even among liberals who had once supported them. This ought to prompt some serious soul-searching among university presidents on whether “diversity” is really worth the price of racial discrimination.

In Fisher, the U.S. Supreme Court ruled that, before race can be used in university admissions, a university must give “serious, good faith consideration of workable race-neutral alternatives” to achieving the goals that are purportedly being achieved by weighing race in admissions decisions. The high court said that the lower court, on remand, “must assess whether the university has offered sufficient evidence that would prove that its admissions program is narrowly tailored to obtain the educational benefits of diversity.”

The Court also said that there must be “a careful judicial inquiry into whether a university could achieve sufficient diversity without using racial classifications.” And: “The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity.” A nondiscriminatory approach must be used if it “could promote the substantial interest about as well and at tolerable administrative expense.”

There is certainly enough in this language to justify an aggressive and thorough challenge to universities’ use of race in admissions, and so they should expect as much. Universities must now be able to document their consideration of alternatives to weighing race, including any reason for not adopting such alternatives.

A particular example would be documentation of how the educational benefits of considering race in admissions would be greater than the educational benefits of considering other, nonracial factors instead. How is education improved by using race, exactly — and how much, exactly, are those benefits of “diversity” enhanced by considering race in admissions, rather than nonracial characteristics that provide actual diversity in backgrounds, such as income or parents’ professions/educational level or geography or age or work experience or whatever? If a nonracial admissions system would achieve similar benefits and with fewer costs, then the consideration of race cannot be said to have been narrowly tailored to the achievement of those benefits.

More fundamentally, schools must now be able to document why and how race is considered in student admissions and must periodically review and rejustify those considerations. And they must be able to document not only (a) the anticipated benefits but also (b) the possible costs associated with the consideration of race in student admissions at the university — and especially, with regard to the latter, the relative academic performance of members of groups that have received such favorable consideration: That is, they must address the “mismatch” problem of “preferred” minorities being set up for academic underachievement or failure by being admitted into schools where their academic qualifications are significantly below those of the rest of their classmates.

As the Fisher litigation continues, meanwhile, Texans should ask the University of Texas’s president, Bill Powers, “Mr. Powers, just how much of the taxpayers’ money from the people of Texas are you willing to spend in litigation to justify your school’s racial discrimination against wrongly colored Texans?” The predicted expense is now above $1 million.

Three other quick points:

1. Litigation expenses and bad policy aside, the amounts spent — that is, wasted — on these diversity programs is appalling, as Manhattan Institute fellow and NRO contributor Heather Mac Donald has documented.

2. As legally and morally dubious as racial preferences are in student admissions, they are even less defensible in faculty hiring and promotion — yet they are equally ubiquitous, with the added problem that here sex rears its ugly head as well. A recent lawsuit filed by a white male administrator against the University of Florida is a good wakeup call for university officials, many of whom seem to think that, if race can be considered in student admissions, it can therefore also be considered in employment decisions. This is just not true. The statutes and the law are different in the two areas, and there is no plausible legal justification for universities to weigh race in making employment decisions in 2013. Here’s a recent discussion of why universities have no legal justification for racial/ethnic/gender preferences in employment.

3. A word with regard to K-12 education: It is appalling that the Justice Department is trying to use old school-desegregation orders to block Louisiana’s school-voucher program (as John Fund discussed in the NRO piece that really broke this story). But, as I wrote more than a decade ago, the underlying problem is often that school districts — for shortsighted political reasons — have been too complacent in leaving these old orders in place, and so they must bear some of the blame. There are still a couple of hundred of these court orders out there, and school districts — and federal judges, on their own initiative — ought to be proactive in removing the ones that are no longer necessary and in fulfilling any that have not yet been fulfilled, six decades after Brown.

No, U.S. Schools Aren’t “Resegregating”

The front-page headline on the Washington Post last week screamed, “New Data Shows U.S. schools Are Resegregating.” 

Not true. Segregation means the government separating students by race and telling them it is illegal for students of one race to attend the same schools as students of another race. So the number of segregated public schools in the United States today is . . . zero.

What is being complained about, instead, are racial “imbalances” that come about, not as a result of racist laws, but because of residential living patterns and the general practice of assigning children to schools that are near where they live. Deliberately assigning children to schools on the basis of skin color — which, ironically, is what the Left wants in order to correct these “imbalances” — is bad policy and illegal, in light of not only Brown v. Board of Education but, more recently, the Supreme Court’s 2007 decision in Parents Involved in Community Schools v.  Seattle School District No. 1

Assigning students on the basis of skin color can hurt minority students as well as nonminority students. As the GAO study that the Post story discusses notes, “Further, according to officials, some magnets with openings could not accept minority students because doing so would interfere with the ratio of minority to non-minority students that the district was trying to achieve.” And as I noted in last week’s email, St. Louis-area public school system was recently sued for refusing to admit a black student because, well, he was black, and that would have interfered with the politically correct racial mix being sought.

There’s more: The Post article also mixes poverty into the equation, but of course here again the fact that rich children live in different neighborhoods than poor children, and therefore are likely to attend different schools, is a very different phenomenon than Jim Crow segregation. And defining “resegregation” can be tricky, especially when there are more than two ethnic groups involved and where the number of white students relative to nonwhites is declining anyhow, as the Post story acknowledges. 

It is true that some public schools are better than others, and that the schools that rich kids go to will often be better than the schools that poor kids go to, and there’s nothing wrong with trying to improve all schools. What’s even better is giving parents more choice in where to send their children, though of course this is less popular with the Left, because it is unpopular with teachers’ unions. 

In any event, there is no reason to use the racial makeup of a school as a proxy for whether it is a good school or a bad school.  In fact, that would be racist, wouldn’t it?

P.S.  To make matters worse, this “resegregation” non-problem is being used to justify a bad bill that has just been introduced in Congress:  one that would make it easier for plaintiffs to bring dubious “disparate impact” lawsuits against anyone who gets federal money and isn’t getting their racial numbers“right.” 

Read about this bad bill here.

Asian American Groups File Discrimination Complaints -- A number of Asian American groups are filing a complaint this week against Brown, Dartmouth, and Yale for admissions discrimination.  

You can read the complaint here.

Of course, it is not really a matter of dispute that whites and Asian Americans are discriminated against vis-a-vis “underrepresented minorities” (that is, blacks, Latinos, and Native Americans). That much is admitted by the schools themselves. 

The question is whether the politically correct discrimination is so ham-handed that it violates the constraints the Supreme Court has put on it, and whether the discrimination against Asian Americans is likewise vis-a-vis whites, which remains politically incorrect. Still, the complaint is welcome, especially as we continue to await the Supreme Court’s decision in Fisher v. University of Texas, which one hopes will put still more constraints on all racial discrimination in university admissions.

Speaking of which …

“Quotas Must Mean Lower Standards” -- So says the chancellor of Oxford.  Glad we’ve got that settled.  Although some approaches lower standards even more than simple racial quotas …

Criminals on Campus -- The Obama administration is encouraging universities to admit more criminals, and of course the soft-on-crime, pro-quota New York Times thinks this is a swell idea. 

Now, I’m sure that there are some people with criminal records who ought to be admitted to schools, and some who should not. I’m also sure (1) that the decision is one for schools to make, not the federal government, and (2) that the decision should not be driven by the racial makeup of who gets in and who doesn’t, which naturally is what the Obama administration’s “(“disparate impact”) focus is.

Finally, and also speaking of felons, last week I participated in a debate sponsored by the National Constitution Center on the recent decision by Virginia governor Terry McAuliffe to reenfranchise over 200,000 felons.  You can listen to the debate here.  I was also interviewed about the issue on National Public Radio and for Australian television (there’s a brief clip of me at about the two-minute mark here).

Discrimination Is Not the Issue

Fifty years after the passage of civil rights laws outlawing discrimination based on race, ethnicity and sex, blacks, Hispanics and women still earn less than white men. In many circles, this fact alone reinforces the belief that discrimination is widespread and only greater government intervention will solve the problem.

Ignore claims of resegregation

On May 17, we will celebrate the 60th anniversary of the Supreme Court's landmark decision in Brown v. Board of Education. And that is certainly something worth celebrating.

The only fly in the ointment is that this event will also prompt many solemn pronouncements that, alas, our schools are just as segregated as ever and/or that they are resegregating. We will be told that therefore the promise of Brown remains unfulfilled, and that this is the reason for continuing racial disparities in education.

But this is not true.

Here's the key statistic that must always be borne in mind: The number of segregated (or resegregated) public schools in the United States in 2014 is ... zero.

Segregation means sending children to separate schools because of their race; it does not mean a failure to have socially engineered racial balance. So we can celebrate, unreservedly, the fact that we no longer have racial segregation in our public schools.

Tavis Smiley: Still separate, still unequal

It is true that there are educational disparities across racial and ethnic lines, but racial imbalances in classrooms have little if anything to do with this. It is not necessary for there to be a certain number of white children in a classroom in order for black children to learn.

As Justice Clarence Thomas once wrote, "It never ceases to amaze me that courts are so willing to assume that anything that is predominately black must be inferior." Some intellectuals and academics, unfortunately, are even quicker than the courts to jump to this conclusion.

Indeed and ironically, the real reasons for existing racial disparities are generally left unaddressed by the same well-meaning people who complain about "resegregation."

When you think about it, a child's environment has three major components – parents, schools and peers – and in all three respects African American children, in particular, face more hurdles. That is, they are more likely to grow up in single-parent homes, go to a substandard school and have peers who are, to put it mildly, unsupportive of academic achievement.

It may be politically incorrect, but we must acknowledge that out-of-wedlock births are a bad thing and that anti-"acting white" peer pressure exists. And while liberal groups will admit that substandard schools are a problem, they will also resist (partly because of recalcitrant teacher unions ) the most promising reforms -- involving competition among schools, merit pay for teachers and more choice for parents and children -- in favor of just throwing more money at the problem. But lack of money is not the problem, any more than lack of racial balance is.

The only way to achieve the politically correct balance that some misguidedly demand is not by ignoring students' skin color, but by using it to sort, assign and bus them. This is flatly at odds with Brown, which prohibited race-based assignments of students.

And it's not even true that there is a declining lack of racial balance. Sometimes an "Index of Exposure" has been used to bolster that claim, but this is a flawed measure, as explained by Abigail and Stephan Thernstrom in their 2003 classic No Excuses: Closing the Racial Gap in Learning. The Thernstroms conclude that "minority students are not becoming more racially isolated; white students typically attend schools that are much more racially and ethnically diverse than 30 years ago, and the modest decline in the exposure of black and Hispanic children to whites is solely due to the declining share of white children in the school age population."

There is also good reason to be skeptical, as Justice Thomas warned, of the claim that more racial-balance means better education. To quote two other leading experts in this area, David Armor and Christine Rossell, "there is not a single example in the published literature of a comprehensive racial balance plan that has improved black achievement or that has reduced the black-white achievement gap significantly."

Bottom line: Let's celebrate the anniversary of Brown. And let's forget about racial bean-counting and, instead, focus on improving our schools, regardless of their racial makeup.

Center for Equal Opportunity Praises Court's School Decisions

The Center for Equal Opportunity praised the Supreme Court's decisions in the Seattle and Louisville school cases today.

CEO chairman Linda Chavez said: "Today's decisions vindicate the principle in Brown v. Board of Education that schoolchildren should not be assigned to schools on the basis of skin color. It is a victory for parents and students of all races."

CEO president and general counsel Roger Clegg said: "As America becomes increasingly a multiracial and multiethnic society, it also becomes more and more untenable to have laws that categorize our people because of race and national origin."

Both Chavez and Clegg said that they hoped that the Bush administration, which had filed briefs in the cases urging the Court to strike down the race-based student assignments, would use the decisions to dismantle racial and ethnic preferences still being used by the federal government, and to attack racial and ethnic discrimination elsewhere.

CEO had joined an amicus brief with the Pacific Legal Foundation in urging the Court to grant review in the cases, and then joined again with PLF after the Court had granted review, urging the Court to declare the race-based student assignment policies in the two school districts to be unconstitutional.
The Center for Equal Opportunity is a nonprofit, nonpartisan research and educational foundation that
focuses on civil rights, bilingual education, and immigration and assimilation issues nationwide.