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E Pluribus Unum

At last week’s prayer breakfast, President Trump made fun of Arnold Schwarzenegger’s poor ratings as his replacement on Celebrity Apprentice, but he also said this:  “So in the coming days, we will develop a system to help ensure that those admitted into our country fully embrace our values of religious and personal liberty, and that they reject any form of oppression and discrimination.  We want people to come into our nation, but we want people to love us and to love our values — not to hate us and to hate our values.” The President’s remarks about Mr. Schwarzenegger were gratuitous, but he’s right about the importance of all Americans, immigrant and native-born alike, needing to share certain basic values if our country is to work well.

I have no doubt that, between tweets, the President reads my weekly email from the Center for Equal Opportunity, so I thought I would share with him (and you) a column I wrote on this topic in 2000.  I still stand by it, and hope that the President and his administration find it useful as they work on ensuring better assimilation.  (Later on, I fleshed out this article in Congressional testimony I gave here.)Here’s the column:

E Pluribus Unum
America has always been a multiracial and multiethnic country. But saying that it is, or should be, multicultural is very different. The ideal was, and still should be, that you can come to America from any country and become an American — but that means accepting some degree of assimilation. It is not diversity that we celebrate most, but what we hold in common.

The same is also true for native-born Americans. All of us can claim equally to be Americans, but all must acknowledge a shared set of beliefs and mores.

America has always been diverse. But telling an elementary school that it cannot insist on teaching children standard English, or English at all; or telling a college that it cannot focus on Western Civilization; or insisting that an employer accommodate work habits it finds to be unproductive; or condemning social strictures as judgmental — well, all this may celebrate diversity, but it denigrates the common standards that a free society must have if it is to flourish.

Still, it will not do simply to condemn diversity, any more than it will to embrace it indiscriminately. There is much diversity that is valuable or at worst harmless. Workers and students from all backgrounds have contributed enormously to our national life, and who cares what food they like? Some diversity is good, and some bad.

Accordingly, it makes sense to set out some rules essential for a multiracial, multiethnic America and that all Americans should follow — wherever they or their ancestors came from, whatever their skin color, whatever their favorite food or dance. Here are my ten, aimed as much at the native-born as the newly arrived.

1. Don’t disparage anyone else’s race or ethnicity. It may seem odd to begin the list with this one, but actually it’s not. On the list of things we don’t tolerate, intolerance deserves a prominent position. If we are to be one nation, we cannot criticize one another’s skin color and ancestors.

2. Respect women. Just as we do not tolerate a lack of respect based on race or ancestry, we also demand respect regardless of sex. Some subcultures — foreign and domestic — put down women. That is not acceptable. This doesn’t mean that men and women have no differences or that we all must be ardent feminists. But it does mean that women must be treated respectfully, and that where the law requires that they be treated equally — as it frequently does in this country — it be followed.

3. Learn to speak English. This doesn’t mean that you can’t learn other languages, too, or keep up a native language. But you and your children must learn English — standard English — as quickly as you can. And, if you expect to be accepted, you should avoid speaking another language when you are with people who don’t understand it.

4. Don’t be rude. Some people apparently view it as unmanly or uncool to be polite. But that is just adolescent sullenness. Customers, coworkers, fellow students, strangers — all expect to be treated courteously, and rightly so. Not every culture is a stickler for taking turns, queuing up, and following the rules (see next item), but Americans follow the British here.

5. Don’t break the law. If you want to participate in this republic — if you want a say in making the rules and electing those who make them — you have to follow the laws yourself. That means, among other things, that you can’t use illegal drugs, which is just as well since there is no surer way to stay at the bottom of the heap or to find yourself there in a hurry.

6. Don’t have children out of wedlock. Moral issues aside, illegitimacy is a social disaster for women and children alike (especially boys). Here again, it is a sure way to stay poor and raise poor children. Perhaps in some countries it takes a village to raise a child, but in the United States it takes two parents. That said, the pathology of illegitimacy is more widespread among some native-born groups than among some immigrants.

7. Don’t demand anything because of your race, ethnicity, or sex. You have the right not to be discriminated against because of these factors, and it follows that you also cannot demand discrimination in your favor. The sooner you can stop thinking of yourself first as a member of a particular demographic subset, and instead as a human being and an American, the better. This is true for both individuals and groups. The demagogues of identity politics promise nothing worthwhile.

8. Working hard-in school and on the job — and saving money — are not “acting white.” And, for whites, it is not being a nerd or a dweeb. America owes her success to a strong work ethic and to parents instilling that ethic in their children.

9. Don’t hold historical grudges. There is not a single group in the United States that has not been discriminated against at one time or another. But we are all in the same boat now, and we have to live and work together. Your neighbor’s great-great grandfather may have tried to kill or enslave yours, but we are a forward-looking country and so we cannot afford to dwell on the past.

10. Be proud of being an American. You can hardly expect to be liked and accepted by other Americans if you don’t love America. This is not a perfect country, and it does not have a perfect history. And there are lots of other countries that have good qualities. But there is no country better than the United States. If you disagree, then why are you here?

Continuing in Obama's Path

For eight years, conservatives -- rightly, in my view -- railed against the imperial presidency of Barack Obama. When he couldn't get what he wanted through the ordered and deliberative legislative process, he used other means, issuing regulations and executive orders that accomplished his goals without having to convince the people's elected representatives of their wisdom. Even Obama's signature legislative accomplishment, the Affordable Care Act, became law without a single Republican vote.

The deep polarization that resulted from President Obama's ham-fisted approach helped lay the groundwork for the election of Donald Trump. But in his first two weeks in office, President Trump has shown no signs of throwing off the imperial mantle of his predecessor. Instead, he's ignoring even members of his own Cabinet, not to mention Congress, to draft orders and directives that will dramatically alter not just policy but, in the case of proposed immigration changes, the very composition of the American population. In doing so, he jeopardizes one of the most important features of American democracy, stability.

The transfer of power between administrations of differing political parties always signals change, but the scope and tempo of change have traditionally been moderated by procedural safeguards. Presidents appoint Cabinet and sub-Cabinet officials but must secure the advice and consent of the Senate in doing so. The leadership of departments and agencies changes at the top, but the work is carried out by career staff members who remain from one administration to another. An administration may want to abandon existing programs and start new ones, but it must go to Congress for the authority and appropriations to do so.

When voters elect a new president, they may well be voting for change, but that change doesn't happen overnight, nor should it. No matter how frustrating it might seem to have to wait and go through the slow process of working through Congress -- and sometimes having to make compromises -- that process protects us. We don't lurch from one extreme to another. Rather, we work through our differences. The Obama administration ignored this example to its detriment and ushered in an era of confrontation that saw the Congress change political hands in large part to exercise a check on executive power.

In his first two weeks in office, President Trump has seemed intent on ignoring the lessons of the Obama overreach, choosing instead to follow Obama's example. Trump is rewriting foreign policy, insulting allies in the process. As The Wall Street Journal noted in an editorial this week, Trump is treating Mexico as Obama treated Israel. A putative transcript of Trump's telephone conversation with Mexican President Enrique Pena Nieto this week quotes Trump talking about "bad hombres" and threatening to send in the U.S. military to deal with them because Mexico's military is weak. The Mexican president's office, unsurprisingly, has denied that Trump made the threat, which would precipitate a crisis in Mexico if proved true, but the White House has remained uncharacteristically mum. No one, however, is denying that Trump insulted Australian Prime Minister Malcolm Turnbull in his abbreviated -- one might call it Trumpcated -- call with the leader of one of the United States' most stalwart allies. Before that, there was Trump's decision to issue an executive order -- one that temporarily bars immigrants from seven majority-Muslim nations and indefinitely bans the entry of Syrian refugees -- on the very day he met with British Prime Minister Theresa May without giving her the diplomatic courtesy of a heads-up.

Those decisions will make everything that follows more difficult. There is no question that immigration policy requires an overhaul, but the way to do it is not by issuing ill-conceived and highly divisive orders from the Oval Office. Leaks of more orders to come suggest that President Trump will begin to shut the door for high-skilled immigrants, roll back legal immigration and deport millions of unauthorized and even legal immigrants whom this administration finds undesirable. Such drastic measures require debate and deliberation -- and none of it is occurring in the echo chambers of Trump's White House.

If the president keeps on this track, he should not be surprised that he will meet fierce resistance. Right now, that resistance is manifesting itself in the streets and among Democrats in Congress. But if Trump continues to try to bully his way to policy changes, eventually members of his own party will begin to apply the brakes. And if they don't, the American people will do so in the next election.

Dr. King, Race Relations, and Obama’s Farewell Address

Let me begin my take on Barack Obama’s farewell address last week and the state of race relations as he leaves office by quoting what I wrote in 2004, after he delivered the Democratic National Convention keynote that vaulted him into the public eye:

Barack Obama gave a fine speech, but it was not a speech that reflects the current Democratic Party. It celebrated America as “a magical place”; it did not bemoan our racism and imperialism. It professed that this black man “owe[d] a debt to those who came before” him; it did not call for reparations. It spoke of an “awesome God”; it did not banish Him from public discourse. It admitted that black parents, and black culture, need to change the way black children are raised; it did not blame or even mention racism. It quoted “E pluribus unum” and translated it correctly as “Out of many, one”; it did not misquote it, as Al Gore infamously did, as “Many out of one.” Most of all, the speech celebrated one America, “one people,” and rejected the notion of a black America, a white America, a Latino America, and an Asian America — a notion completely foreign to the multiculturalism that now dominates the Democratic Party.
Alas, the Democratic party of 2017 is just as bad as it was in 2004, and Barack Obama has gotten worse in the intervening years.

A sizeable chunk of Obama’s farewell address was devoted to “race relations.” Let me give credit where it is due: He acknowledged that race relations have gotten better in recent decades “no matter what some folks say,” which separates him from many on the hard left who insist that there’s as much racism now as there was under Jim Crow and it’s just better disguised. (See, for example, the title of one holy text in this area, The New Jim Crow: Mass Incarceration in the Age of Colorblindness.) The president is also to be praised for a (rather oblique, admittedly) swipe at the notion of “white privilege,” when he warned nonwhites to have some sympathy for “the middle-aged white guy who, from the outside, may seem like he’s got advantages, but has seen his world upended by economic and cultural and technological change. We have to pay attention, and listen.”

In other respects, however, the speech was disappointing, especially compared with what Obama said in 2004. Racism past and present is now put at center stage, and indeed it is emphasized that the “effects of slavery and Jim Crow” are still with us. The president warned that “we need to uphold laws against discrimination,” as if anyone is calling for their repeal; he suggested that those calling for stricter immigration enforcement do so because immigrants “don’t look like us.”

Obama suggested, too, that there is something wrong with those who criticize racial preferences (a.k.a. affirmative action), dismissing the notions of “an undeserving minority” and “reverse racism” and “political correctness.” The fact of the matter is that, too often, he is wrong when he says protesters (and I’m thinking in particular of campus protesters) are “not demanding special treatment but equal treatment.”

The president rightly called for greater unity and “common purpose.” Even if this time he did not use the phrase E pluribus unum, he did endorse “a basic sense of solidarity -– the idea that for all our outward differences, we’re all in this together; that we rise or fall as one.” He quoted the Declaration of Independence, honored the military, and expressed his desire for a nation where every citizen “loves this country.” These were all laudable sentiments.

But the policies of Obama’s party, and his administration, are inconsistent with achieving E pluribus unum. His administration has, in any number of ways, insisted on the government’s classifying people according to skin color and national origin, and indeed he has proposed on his way out the door that the Census ramp up the use of these classifications. In other respects, too, his policies and language divide us, rather than uniting us through patriotic assimilation. How can he call for “common purpose” and “solidarity” and, at the same time, insist that it is perfectly okay for Americans to be treated differently based on their race and the country their ancestors came from?

The biggest fault of the speech, though, was in something that the president did not say, or even advert to. I noted above that the 2004 speech “admitted that black parents, and black culture, need to change the way black children are raised.” And from time to time the president has been willing to confront, in particular, the problem of out-of-wedlock births among African Americans. Indeed, it was such talk that prompted Jesse Jackson (who has fathered at least one child out of wedlock) to threaten to “cut [Obama’s] nuts off” in 2008. But there was no mention of the implosion of the black family in the farewell address, even though out-of-wedlock births — and not just among African Americans — are the country’s number-one social problem.
In a word: Nothing can purport to be a serious discussion of race relations in this country unless it discusses out-of-wedlock birthrates, because it is the disparity in out-of-wedlock birthrates that now most drives other racial disparities.

Consider the federal government’s latest numbers on out-of-wedlock birthrates, by race and ethnicity. The data are from last summer, and they contain nothing new or surprising. But it is disturbing and depressing nonetheless. In 2015, 40.2 percent of all births were out of wedlock, and there are very big disparities among the different racial and ethnic groups. Highest are non-Hispanic blacks at 70.4 percent, followed by American Indians/Alaska Natives at 65.8 percent, and Hispanics at 52.9 percent. Somewhat better are non-Hispanic whites at 29.2 percent, with the lowest figures by Asians/Pacific Islanders at 16.4 percent.

That’s a big range — from more than seven out of ten to fewer than two out of ten — and there is an obvious fit between how well a group is doing by any social indicator you like (education, crime, employment, poverty, etc.) and the percentage of children it produces out of wedlock. This turns out to be true not only across different racial and ethnic groups but also within them.

Racism is a bad thing, and it still exists. But the president is right that only the delusional think it is anything like the problem it was 50 years ago. The principal impediment for those who would like to narrow our ongoing racial disparities is not racism; it’s the “70.4 percent” figure above. Obama had a duty to talk about that again, too, and he failed to do so.

The Left has never been happy with anyone, especially a black president, saying this, and it has always insisted on race-specific, rather than race-neutral, social programs. As his presidency ends, alas, Obama has acceded more and more on both points.
I don’t think that Martin Luther King would be happy with this. He did, after all, dream of a country where individuals are judged by the content of their character, not the color of their skin. As for the disintegration of the black family, it was well under way in the 1960s, as Daniel Patrick Moynihan warned. Dr. King had his extramarital affairs, but he was a pastor, and it is hard to imagine that he would be happy about the rate of out-of-wedlock births among African Americans, which is more than double today what it was back then.

There was speculation after Obama’s farewell speech that he might return to his community organizing. I mean no disrespect when I say that I hope he will. He said near the end of his speech that he was proudest of the fact that he is his daughters’ father. In that, and in his marriage to Michelle, he is an invaluable role model where one is most sorely needed.

The Racial Poison of “White Privilege”

I had occasion recently to post on National Review Online this short summary of why the accusation of “white privilege” is poisonous:

It is, for starters, a divisive phrase, much more likely to hurt race relations than help them, as it lumps together all white people — many of whom cannot be considered “privileged” by any reasonable standard — and points an accusatory finger at them, asserting, “You don’t deserve what you have.” It is, at bottom, just another way of complaining about stereotyping, even though all racial groups — indeed, all groups, period — face stereotyping, some negative and some positive, and there’s nothing new or remarkable about it. It overstates the extent to which stereotyping occurs and the consequences it has. And, finally, playing this particular race card suggests that racial disparities — and, indeed, racial stereotyping — are due solely to racism simpliciter, and have nothing to do with culture and, in particular, cultural dysfunctions. It is, in other words, the “conversation on race” that we have come to expect from the left: All whites must accept blame for all disparities of any kind, and any suggestion that some non-whites have failed to act responsibly is blaming the victim.

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Another Bad “Disparate Impact” Lawsuit – The Ninth Circuit last month heard oral argument in a case challenging the NCAA’s policy of barring all convicted felons from coaching in NCAA-certified tournaments held for recruiting student-athletes to NCAA Division I schools. The policy is said to have a “disparate impact” on African Americans, and this is supposed to violate Title II of the 1964 Civil Rights Act, which bans “discrimination or segregation on the ground of race, color, religion, or national origin” in “places of public accommodation.”

Sigh. Putting aside why the NCAA having this rule is “public accommodations” discrimination covered by Title II in the first place, it would be absurd to construe this statute to allow “disparate impact” causes of action. Consider a hotel resort, which clearly would be covered: Are its rates, location (are a city’s hotel-zoning decisions to be challengeable, too, by the way, if they have a “disparate impact”?), menus, music, dancing, décor, and on and on to be challengeable because in some way one or the other is less accommodating, statistically speaking, to this group or that group on the basis of race, color, ethnicity, and religion? The disparate-impact approach is exceptionally unwieldy even in the areas where it has already been applied, as I discuss here (noting, among other things, that the Supreme Court’s most recent pronouncement in this area, while disappointing, was at least unanimous in recognizing the dangers with the disparate-impact approach), and there is no reason to make matters worse.

It’s telling that even the Obama administration, which was always very aggressive in using the disparate-impact approach, decided to sit this case out. No federal regulation interpreting Title II as including disparate-impact discrimination is cited by plaintiffs. Fun fact: The district judge in this case, who ruled correctly that Title II does not allow disparate-impact lawsuits, was Gonzalo Curiel — the Obama appointee you may remember as the Latino jurist that President Trump complained about being biased against him.

Finally, bear in mind that the disparate-impact approach requires race-based decision-making rather than prohibiting it. That is, it means that a decision-maker must be conscious of getting its racial, ethnic, and religion numbers right in order to avoid liability, rather than simply making decisions without regard to these things, which of course is what the civil-rights laws are supposed to be all about. Thus, the approach raises constitutional problems, as the late Justice Scalia noted. Accordingly, the Center for Equal Opportunity joined and helped write an amicus brief filed with the Ninth Circuit, urging the court to adopt the principle of limiting the interpretation of civil-rights statutes to banning actual discrimination (disparate treatment) unless there is clear language in the statute to the contrary (which is conspicuously lacking here: A policy that is, as conceded in this case, neutral by its terms, in its intent, and in its application is not “discrimination or segregation [i.e., no “separate but equal” defense] on the ground of race” etc.).

Here’s hoping the Ninth Circuit agrees and puts paid to the notion that Title II can be used in this absurd way.

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No More “Alternative Facts” – I’m delighted with the news media’s discovery and embrace of objective truth and its rejection of the notion that all narratives are equal.  I look forward to them giving short shrift in the future to any continued claims that, for example, Michael Brown and Trayvon Martin were murdered because of their skin color.

Relatedly:  I’m under no illusions about the new administration’s frequent willingness to shoot first and aim later, if at all, but I was nonetheless irritated by much of the news media’s coverage over the weekend that suggested the reason seven countries (Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen) are being singled out for immigration restrictions is because they are “majority Muslim.”  If it was the aim of the administration to target such countries, it’s doing a poor job, since — according to this university link, for example — there are many, many more majority-Muslim countries not on the list.  In fact, I counted 51 majority-Muslim countries in all, meaning that the administration managed to miss 44 of them.  So it seems more plausible that, whatever you think of it otherwise, the administration’s policy really is at least aimed at countries with significant terrorist enclaves and deficient screening mechanisms, not lots of Muslims.  Whether it is well-crafted, tactically wise, and properly rolled out is, of course, another question. 

Undermining Trust in Our Institutions

President-elect Donald Trump conceded this week that he thinks Russia was responsible for hacking the emails of the Democratic National Committee and the Hillary Clinton campaign, though he couldn't help but add the caveat that it "could have been others also." Trump's reluctance to accept the conclusions of the intelligence community on this issue until this week has always been based on the fear that it might cast a pall over his election victory. But what if the point of Russia's interference was not to try to pick a winner but to delegitimize the democratic process altogether? This seems far likelier than the questionable theory that Russian President Vladimir Putin preferred Trump to win. No matter how fawning Trump has been over Putin, Republicans in Congress, as well as Republican appointees who make it through confirmation in any Republican administration, are more reliably committed to a strong, assertive national defense than their Democratic counterparts. It seems naive to believe that Putin's Russia would prefer a Republican administration -- even one led by Trump -- over a Democratic administration.

What Putin wants is an America that is diminished in the eyes of the world. And what better way to accomplish that aim than to make people lose confidence in America's democratic institutions and sow seeds of doubt about the legitimacy of our democratic process, no matter who won? The Russians seem to have done a pretty good job at accomplishing that goal. If elections in the United States are not free and fair, if their outcome can be tampered with or influenced by outside intervention, if Americans themselves are no longer capable of making informed decisions, how is the U.S. any different from countries such as Russia itself? We are looking more and more like a laughingstock, and our institutions, including a free press, are becoming more vulnerable.

When the inauguration takes place next week, Americans will be more divided over the fitness and abilities of the man being sworn in than at any time in recent memory. It's true that there were many of us who didn't believe that Barack Obama was up to the job of leading the Free World based on his limited experience, but even his critics were, for the most part, willing to give him a chance. Obama assumed office with a 75 percent approval rating during the transition period; even George W. Bush entered office with a 65 percent approval rating despite the contentious court battle over whether he had won the election. The same can't be said of Trump. The country remains equally divided over how he has handled his transition, 48-48 percent. More disturbing, only 37 percent of Americans approve of Trump as he enters office. The transfer of power in any democracy requires that the people accept the outcome of the election, even if they don't particularly like it. But the resistance to Trump is worse than any I've seen in my 45-year history in politics. Putin must be chuckling in Moscow.

One of the most important pillars of maintaining a democracy is a free press -- and here, too, Russia played a destructive role during the election. Russia's interference in the election wasn't restricted to hacking emails and releasing embarrassing information; the intelligence community also found evidence that Russia was behind "fake news" stories that millions of Americans tapped into online. But again, what is most worrisome about this meddling is that it has added to doubt in the minds of many Americans about the media in general. The right distrusts the mainstream media (and has for decades), so many conservatives simply tune them out, refusing to believe anything reported by The Washington Post, The New York Times, CNN or the major networks. When, according to a 2016 Gallup Poll, only 32 percent of the public trusts mass media to report news "fully, accurately and fairly," we've got a problem. The media need to correct bias -- or even the appearance of bias -- but it is also incumbent on our political leaders, especially the president-elect, to stop bashing the media. Putin is cheering on this distrust, as are all enemies of freedom.

Democracy can only exist as long as the people trust its institutions. The greatest calamity of this election cycle has been the weakening of that trust. Putin's aims can be accomplished only if we allow him to undermine our belief in our system.

The Duty of Loyalty

Presidential appointees take an oath "to preserve, protect and defend" not the president who appointed them but rather the Constitution of the United States. It would do well for President Donald Trump's appointees, including those who serve in the highest levels of the White House, to remember that. Their primary duty is not to an individual, no matter how much personal loyalty they may feel they owe him, but to the sovereign laws of the nation. In his first week in office, President Trump has already tested the duty of his highest-level appointees, and some have come up short.

Within the first few days of his administration, the president called on top White House staffers to spread disinformation -- and they complied. From press secretary Sean Spicer's debut briefing the day after the swearing-in, where he asserted that "this was the largest audience to ever witness an inauguration -- period -- both in person and around the globe" to counselor Kellyanne Conway's defense of this untruth as based on "alternative facts," these individuals let down both the American people and, ironically, the president. The issue was a trivial one. Who cares how many people witnessed the president's swearing-in, after all? But misstating verifiable facts and then doubling down when the falsehoods are exposed is dangerous and erodes the trust of the people these officials are meant to serve -- namely, the American people.

What followed this bizarre episode is much more troubling, however. It is one thing to lie about crowd size but quite another to lie about election fraud. Once again, President Trump sent his spokesman out to repeat an untruth, that 3 million to 5 million people illegally voted in the 2016 election. When pushed, Spicer said that maybe the administration would investigate -- and within hours, the president tweeted, "I will be asking for a major investigation into VOTER FRAUD, including those registered to vote in two states, those who are illegal and even, those registered to vote who are dead (and many for a long time)." So, we will now commit who knows how much money to investigating alleged fraudulent voting without a scintilla of evidence to warrant it. What next? Maybe President Trump will reinvestigate whether Barack Obama was born in the United States or launch an inquiry into the "thousands" of Muslims who "celebrated" in Jersey City as the twin towers came down on 9/11.

If Spicer and Conway can't stand up to President Trump's request to repeat untruths, how can we expect others in his administration to respond when he orders them to do something not just dishonest but illegal? We may soon see, as a draft executive order leaked this week shows that the new administration is contemplating reviving so-called black sites overseas, where the CIA might use interrogation techniques not approved in the Army Field Manuals as required under current U.S. law. Though the techniques the president wants to resume were not named specifically in the draft document, he left no doubt in an interview this week with ABC News that he believes "torture works" and that he wants "to fight fire with fire." CIA Director Mike Pompeo and Secretary of Defense James Mattis have both testified they will not reinstate waterboarding, which U.S. law defines as torture, but neither man would be likely to be sitting on the administering end of the water hose. Would lower-level officials refuse to torture if an order came from the White House and not the head of their agency? It takes courage to stand up to power. We've seen little of it so far in this administration.

And what about Congress? The Constitution establishes a separation of powers, the particular genius of our American system. By not vesting power with any one branch of government, the Founding Fathers created a self-regulating bulwark against tyranny.

However, although it is a little too early in Trump's administration to know the direction the president intends to go, so far he has wielded his executive pen to order the types of changes that should come from Congress. Instead of saying he'd work with Congress to establish a better border security system, he issued an executive order to build a border wall he still claims Mexico will pay for, which prompted the president of Mexico to cancel a planned U.S. visit, precipitating Trump's first international incident. Trump also issued an executive order that not only changed priorities for deportation of unauthorized immigrants, something within his authority, but also redefined as "criminals" even some immigrants who have never been charged with a crime, which was not.

The new administration has started down a slippery slope. It's not too late to stop the erosion of trust, but it will take individuals willing to say "no" when the president's demands conflict with their duty to the Constitution, which they've sworn to uphold.

Confirm Senator Sessions

The Department of Justice has law-enforcement responsibilities in all kinds of areas: antitrust, tax, environment, general criminal and civil litigation, and so forth.  But just about all the opposition to President-elect Donald Trump’s nominee to head the department as attorney general, Sen. Jeff Sessions, is because of one area:  civil rights.  That happens to be the Center for Equal Opportunity’s area, too.

Opponents to the nomination are trying to paint Sen. Sessions as a racist, and as someone who therefore will be unenthusiastic about enforcing the civil-rights laws.  But the real concern here is not that Sen. Sessions will not enforce the civil-rights laws as a general matter, but that he will not distort their enforcement in key areas of interest to the Left.  That is, the real objection to Sen. Sessions is that he does not like the use of racial preferences (a.k.a. affirmative action) or its close cousin and another kind of race-based decisionmaking, the “disparate impact” approach to civil-rights enforcement (which the Left likes to use to attack, for example, ballot security measures, or school-discipline or criminal-background-check employment and housing policies that have racially disproportionate results).

Consider an item from Inside Higher Ed this week:

The American Association for Access, Equity and Diversity on Saturday released a letter urging the U.S. Senate to reject President-elect Donald Trump's nomination of Alabama Senator Jeff Sessions as U.S. attorney general. The group includes many campus diversity and equal opportunity officers, and the letter highlighted a Sessions quote on affirmative action from 1997. At the time, he said, "I think it has, in fact, been a cause of irritation and perhaps has delayed the kind of movement to racial harmony we ought to be going forward [with] today. I think it makes people unhappy if they lost a contract or a right to go to a school or a privilege to attend a university simply because of their race." The diversity group's letter says that Sessions has continued to espouse such views, in particular when rejecting some of President Obama's judicial nominees. This view, the group says, distorts affirmative action in implying that colleges are accepting or rejecting candidates based on race alone.

My posted response to this story:

Oh, come on. If race is a factor in deciding who is admitted, then in some cases it makes the difference between getting in and not getting in. Otherwise, why consider it? And when that happens, then racial discrimination has occurred. No one can seriously claim that the use of racial preferences in admissions does not result in that happening, nor for that matter that race is typically given far heavier weight than a mere tie-breaker.  Senator Sessions did not say that race was the only factor, just that it was the deciding one. And I'm not sure that distinction matters anyhow, as a matter of law or policy.

Put the shoe on the other foot: Suppose that a police officer stops and searches suspects in part because of race, but that the officer considers other factors as well (like age, sex, dress, behavior, etc.). Does that mean that racial discrimination is not occurring? What's more, if a black person is stopped because of his race when he would not have been stopped if he had been white, isn't it fair to say he was stopped "simply" because he is black?

The letter here says that affirmative action is designed to "prevent discrimination and to promote opportunities for all who are qualified to compete regardless of their race ...."  But in fact the use of racial preferences
is "discrimination," by definition, and it does not result in promoting opportunities "regardless" of race.

To elaborate:  Conservatives like Sen. Sessions (and we here at the Center for Equal Opportunity) really do think it is better for everyone — better for the country, better for black and white, brown and yellow and red — if the government doesn’t sort people by color and treat some better and some worse as a result of that sorting.  We really think it is better to have colorblind policies now rather that at some vague, undetermined point in the future.  And we really do think that it’s a bad idea to change standards, to lower standards or to get rid of standards, because of a belief that a disproportionate number of people of this color or that color won’t be able to meet those standards.  The message implicit in doing that is divisive and only encourages racist thinking.  And, let me add, the Center for Equal Opportunity really does believe that the best way to address racial disparities is to end the disparities in out-of-wedlock birthrates so that children of all races grow up in two-parent homes and will therefore be more likely to meet the standards that are set in our society.

We really believe all that.  We really do.  And whether other people agree or not, they should be able to understand that such a belief cannot legitimately be called “racist” or that those who hold it can legitimately be characterized as hostile to civil rights.

The Elephant in the Jail Cell – On a related note, the New York Times and the Washington Post each featured long, front-page stories last month about inner-city black crime. They are not labeled as such, but that’s what they are. And both are interesting, as far as they go; kudos especially to the Post’s series on how the District of Columbia’s policy of giving second chances to repeat violent offenders is maybe not working out so well. But neither story seriously grapples with the obvious problem that is nonetheless clearly there, just below the surface of the narrative: Boys are getting into trouble when they grow up in environments where fathers are not in the picture (and their absence is unsurprising since the mothers are not married).

Farewell to Nat Hentoff – Over the weekend, maverick columnist Nat Hentoff died.  Mr. Hentoff was a liberal on most issues, but not all, and one of the issues in which he broke ranks with the Left was racial preferences.   We were always gratified by his support.  R.I.P.

CEO Is Watching You, Federal Bureaucrats – Throughout the Obama administration, the Center for Equal Opportunity has monitored the Federal Register every day with an eye toward blowing the whistle on illegally discriminatory federal programs.  Here’s an example of the kind of comment we have sent during this time.  By the way, I love the opening sentence of this particular notice:  “The SEED program provides funding for grants to National Not-for-Profit Organizations for projects that support teacher or principal training or professional enhancement activities and that are supported by at least Moderate Evidence of Effectiveness.”  Let’s Make America Moderately Effective Again!

January 4, 2017

To whom it may concern:

We have two comments on the Federal Register notice of December 22, 2016 (81 FR 93671:  “Applications for New Awards; Supporting Effective Educator Development Grant Program”).

First, students who attend a “high-minority school” are defined as a “high-need students” — that is, “students who are at risk of educational failure or otherwise in need of special assistance and support.”  Justice Thomas began his concurrence in Missouri v. Jenkins, 515 U.S. 70 (1995), by stating:  “It never ceases to amaze me that the courts are so willing to assume that anything that is predominantly black must be inferior.”  Does the U.S. Department of Education share this lamentable assumption?  If not, then we respectfully suggest that the equation of “high-minority” with “high-need” be discarded in this and future Federal Register notices of this kind.

Second, the notice states that one “priority area” is “[i]ncreasing the number of individuals from groups traditionally underrepresented in STEM, including minorities, individuals with disabilities, and women, who are teachers of STEM subjects and have increased opportunities for high-quality preparation or professional development.”  By what statutory authority is the U.S. Department of Education encouraging recipients of federal funds to engage in race- and sex-based decisionmaking? As you may know, it is generally illegal for the government to single out for special treatment or even use classifications based on race, ethnicity, or sex.  See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995) (“all racial classifications … must be analyzed by a reviewing court under strict scrutiny”); Mississippi University for Women v. Hogan, 458 U.S. 718 (1982) (gender classifications require an "exceedingly persuasive justification"); see also 42 U.S.C. 2000d (barring discrimination on the basis of race, color, and national origin in federally funded programs).  Indeed, such classifications and favoritism are “presumptively invalid” (see Personnel Administrator v. Feeney, 442 U.S. 256 (1979)). Accordingly, unless there is some explicit statute requiring the use of such categories here, we respectfully request that the highlighted language be deleted. 

Thank you for your attention to our concerns, and we look forward to your reply.

Bad Resolution for the New Year

A couple of years ago, a bad Senate resolution was introduced, encouraging the entire private sector to adopt a ramped-up version of the National Football League’s “Rooney Rule”: That rule originally required that at least one racial minority be introduced for any head coaching vacancy, and the Senate resolution now wants interviewed at least two “qualified minority candidates for each managerial opening at the director level and above” and least two minority-owned businesses for vendor contracts.

Well, that bad Senate resolution is back.  What remains especially lamentable is that it’s being proposed not by Bernie Sanders but by Tim Scott, who should know better, and it’s being cosponsored by Marco Rubio and Rand Paul, among others. Here’s our critique from last time around, which still stands.  It’s bad policy and unconstitutional. 

Relatedly, a recent article in the Washington Post says that the Democrats in Congress are contemplating adoption of their own “Rooney Rule” when it comes to hiring staff.  But as I have discussed before, the Rooney Rule is bad as a matter of both law and policy:

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Why Is Smokey Never a Polar Bear? – Shortly before leaving office, President Obama issued a “Presidential Memorandum — Promoting Diversity and Inclusion in Our National Parks, National Forests, and Other Public Lands and Waters.” It orders the National Park Service and such agencies to do better when it comes to having “diverse” employees and visitors by, for example, rooting out “unconscious bias”; see recent posts on the dubiousness of such enterprises here and here. There’s no suggestion that any lack of diversity among employees or visitors is due to actual discrimination; rather, the memorandum is simply another reflection of the Left’s obsession that there be no enterprise anywhere that has a politically incorrect demographic balance.

But why stop with national park employees and visitors? There needs to be more “biodiversity” in the parks’ flora and fauna, too. If evergreens insist on being monochromatic, they should be uprooted and replaced. It’s obvious to even a tourist that bears of color are greatly overrepresented at parks in the lower 48, and we need more female deer with antlers and more male deer without. Even more fundamentally, “Yellowstone” is a microaggression against Asian Americans, and no self-respecting feminist will ever visit Grand Teton National Park.

Here’s hoping the Trump administration will put an end to this sort of nonsense.

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A Trip Down Memory Lane – A recent New York Times op-ed by Donald Moynihan claims that attacks on free speech have occurred mostly "elite private institutions like Oberlin and Yale," not in "large public institutions [like those] in Michigan, Texas, and Wisconsin" where he has taught.

Center for Equal Opportunity supporters, however, may recall that in 2011 we had an experience at the University of Wisconsin that calls this claim into question.  But, in all fairness, I’m not sure I would give the school a failing grade based on my own experience there (I won’t defend the school in other respects). 

Here are the details:  It’s true that a university official orchestrated a student protest against our press conference releasing a study that year documenting the school’s use of racial preferences in admission, and that the protest was an ugly one.  Our press conference was held off-campus at a hotel, but the protestors broke into building, injured at least one hotel employee, eventually swarmed — chanting — into the press conference itself (it was essentially over by the time they got in), and then attempted to pursue me into the elevator I was taking to my room (my friend professor emeritus Lee Hansen and hotel employees kept them out). 

That’s the bad part, and I figured that, after all this, the school would seize upon some pretext to cancel a Federalist Society debate on affirmative action that I was scheduled to participate in that evening.  But here’s where the school redeemed itself:  It insisted that, no, there would be no heckler’s veto, moved the event to a larger forum (the student union building, where the security would be better), beefed up campus security (escorting me to and from the event), and the show went on (there was some unruliness in the audience, but it was manageable, and I was not prevented from saying anything I wanted to say). 

The university officials quoted to me the school’s “sifting and winnowing” metaphor regarding its traditional commitment to free speech; you can read all about that metaphor here.  The net result for the Center for Equal Opportunity was an event that was actually bigger (nearly a thousand students, as I recall) than it would have been otherwise, and of course we got some good publicity for it (e.g., on the O’Reilly Factor). 

Anyway, I wanted to give credit where it’s due, regarding this particular event.

*          *          *“Social Justice” and Free Speech – And while we’re in the groves of academe:  Friedrich Hayek famously noted how the word “social” as an adjective effectively means “not” — so that social science is not really science, and social climbing is not really climbing, and of course social justice is not really justice at all.  That came to mind as I read George Leef’s column here about a case now being presented to the Rhode Island state supreme court, in which a student at a state school is being denied the opportunity to pursue his degree in social work, because of an unwillingness to advocate for the right kind of social change, all in the name of social justice.  Well, social justice or not, there are some First Amendment problems here, and the Cato Institute, National Association of Scholars, and Foundation for Individual Rights in Education (FIRE) have filed an amicus brief urging the court to take the case. 

A Tale of Two Trumps

In a matter of a couple of weeks, Donald J. Trump will be sworn in to office as the 45th president of the United States. But which Trump will occupy the Oval Office is an open question. Will it be the man who has assembled, for the most part, a team of well-qualified and impressive individuals to run the government's most important agencies and departments? Or will it be the man who'd rather believe the likes of Vladimir Putin and Julian Assange than the U.S. intelligence community when it comes to Russia's efforts to influence American elections? Will he spend his first days in office laying out concrete plans to boost the economy through comprehensive tax and regulatory reform? Or will he continue to jawbone individual companies he deems insufficiently committed to keeping a relative handful of jobs in the U.S.? Most importantly, will he immerse himself in learning the details of U.S. foreign policy to formulate careful plans to undo some of the damage that has been done in the past eight years? Or will he continue to rely primarily on cable news talking heads as his source of information and Twitter as his command post for signaling policy changes?

Trump will enjoy no honeymoon. The press is hostile. Democrats are furious. And the public is equally divided about whether he will be a good president. He enters office with the lowest approval ratings of any president-elect in modern history. But most worrisome, Trump is almost sure to face an immediate crisis somewhere in the world.

The likeliest scenario is a missile launch from North Korea to test its long-range nuclear delivery capacity. On New Year's Day, Kim Jong Un announced he intends to test a new version of an intercontinental ballistic missile, which, if successful, could put the United States in the bull's-eye of a potential nuclear attack in the not-too-distant future. North Korea engaged in similarly provocative actions shortly after Barack Obama took office in 2009 and shortly after he was sworn in for a second term in 2013, testing nuclear devices just months or weeks after the president's inaugurations. North Korea's fifth nuclear test, which took place in September 2016, is estimated to be its most powerful bomb yet, at 10 to 20 kilotons, and Kim claimed at the time that the country can make a bomb small enough to be used on the warhead of a missile.

Trump delivered his reaction to Kim's threats by tweet: "North Korea just stated that it is in the final stages of developing a nuclear weapon capable of reaching parts of the U.S. It won't happen!" With as unstable a leader as Kim Jong Un, those words could provoke even more dangerous actions. Kim is the most delusional leader in the world, a totalitarian who lives in constant fear of an attack by the "imperialist" United States and believes that North Korea's only defense is to attack first, as it did in 1950, when 75,000 North Korean soldiers crossed the 38th parallel into South Korea, launching the Korean War. Kim reiterated his commitment to a first strike in his Jan. 1 address: "We will continue to build up our self-defense capability, the pivot of which is the nuclear forces, and the capability for pre-emptive strike as long as the United States and its vassal forces keep on nuclear threat and blackmail and as long as they do not stop their war games they stage at our doorstep disguising them as annual events."

Trump must be prepared with more than bombastic tweets if he hopes to keep Kim in check, and he should do so quietly and with expert counsel. The men and women he must now look to for an assessment of the dangers are the very people he has spent the past few weeks denigrating -- the professional intelligence community. Trump needs to keep his eyes and mind open, his mouth shut and his fingers occupied with something other than his Twitter account. But the real test will be whether those he's selected for the jobs of running our defense, foreign policy and intelligence agencies can deliver news Trump doesn't want to hear when it's necessary -- and whether Trump will be willing to listen.