Center for Equal Opportunity

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

Tue09192017

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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.

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.

Cabinet Nominees in for Rude Awakening

President-elect Donald Trump is filling his Cabinet with lions of industry and finance, not surprising for a businessman, and the left has predictably focused on the various conflicts of interest that might arise for his nominees. But the likelihood is that most will make it through confirmation, perhaps with a few bumps -- and that is where the real challenge lies. The problems won't end even if each of these men (and his business picks are mostly men, an exception being Linda McMahon, who received a sub-Cabinet nomination) is willing to be scrupulous in avoiding conflicts of interest. They still face enormous challenges once they take office because they have never worked in government.

As someone who has spent most of her career outside government but has also headed a small federal agency and had two stints working in the White House, I can tell you that the federal government is a world unto itself. The normal relationships between employer and employees don't exist. As the head of a department or agency, you pick very few of your own employees, and you have little or no authority to get rid of those employees you inherit. Worst of all, you can't reward outstanding service (except with very modest bonuses, which pale in comparison with those in the business world). There is no such thing as pay for performance, which is the rule in business. Nor is it even possible to promote the best hires, except within the constraints of federal civil service rules, and you can't move employees around easily from one job to another.

The word bureaucracy became a synonym for inefficiency and burdensome rules for a reason. Working within the bureaucracy requires a talent and patience that few CEOs, in my experience, possess. I have served on corporate boards for more than 25 years and worked closely with CEOs and others in the executive suite. What I've seen tells me that the businesspeople in the Cabinet are in for a rude awakening.

In the business world, competition is stiff. There's no such thing as lifetime employment for the top jobs. If you do your job well, you can expect to advance, and you can expect to be rewarded handsomely. Employees receive a base salary and, in many cases, bonuses and stock or stock options -- but all are tied to performance. Companies establish compensation programs that look at both individual and company performance. Though various administrations have tried to mimic private-sector practices by setting up performance reviews, the processes bear little in common.

A company sets its budget for the year and then evaluates whether the employee met his or her target. Even those whose jobs don't directly affect revenues or profits, say the general counsel or the head of human resources, usually receive a portion of their bonus based on overall company performance. If the company does well, makes more money and, in public companies, sees its stock price go up, executives receive rewards. In government, Congress appropriates the money to fund departments and agencies, and the Office of Personnel Management sets wages on a set scale that evaluates job titles and responsibilities. There is very limited flexibility within the government system.

One of the biggest difficulties the new Cabinet members will encounter is in picking their own team. Traditionally, the president appoints sub-Cabinet officials, sometimes with little input from the department secretary. And so it goes, down the line, with assistant secretaries unable to choose their direct reports, which is the prerogative of the transition office in the early days and of White House presidential personnel later on. Cabinet officials in the Trump administration may have more latitude than previous agency heads did because the campaign did not have the legions of volunteers and donors expecting political appointments. But even if the new secretaries can pick more of their own people, the total number of political appointments throughout government is tiny -- some 4,000 jobs out of a civilian federal workforce of 1.4 million.

The greatest culture shock for these new Cabinet members who've never worked in government, however, will be how little authority they have to make major changes in their departments. Divisions within agencies often operate as fiefdoms, with their own ties to Congress and appropriations staffers who fund their work. Reorganizing is difficult and painful. Worst of all, firing anyone in the federal government, even for cause, is a tedious process for which few have the stomach. And forget about getting rid of someone without an ironclad show of gross incompetence or malfeasance. Donald Trump's famous "you're fired" won't be heard often after he takes over in January.

CEO's End of Year Appeal

Dear CEO Supporter,

2016 has been a banner year for the Center for Equal Opportunity (CEO), as we continue in our relentless opposition to race-based policies by the government at the federal and state level, and by other politically correct institutions. That’s why we are asking for your help again.

But first let me tell you about some of what we’ve been up to. This year, especially with the emergence of the Black Lives Matter movement and rampant political correctness on college campuses and elsewhere, the race baiters have been out in full force—trying to inflame the nation and irresponsibly play the race card at every turn. But CEO has been out there fighting back, speaking and writing on these issues and leading the fight against the racialization of our campuses and other institutions. And we are optimistic that with the incoming administration and new Congress that we will have a positive influence in turning back racial preference policy.

The current top priority of CEO is monitoring, publicizing, and challenging the use of racial preferences and other race-based decision-making.  CEO keeps an eye on not only news stories and government websites but also the Federal Register, the public filings of the federal government (particularly the Justice Department’s civil rights division, the EEOC, and the Education Department), the introduction of federal bills, and nominees to the both the executive branch and the judiciary.  When we uncover instances of racial preference policies, we publicize those policies and then lead and coordinate opposition to them in the court of public opinion—speaking on campuses, coordinating other conservative groups, and writing in magazines, newspapers, and online publications—and in the courts themselves. 

Here are just a few highlights of CEO’s work.  We continue to give unmatched bang for the buck. 

Supreme Court Litigation -- One prominent area of our activity over the years has been in Supreme Court litigation. CEO has been heavily involved in dozens of such cases. Here are just two recent examples:

  • Schuette v. By Any Means Necessary (BAMN) – The Center for Equal Opportunity succeeded in helping persuade the Supreme Court to hear—and rule correctly in—this important civil-rights case. The full U.S. Court of Appeals for the Sixth Circuit had held that, bizarrely, Michigan's anti-preference Proposal 2 violates the U.S. Constitution's Equal Protection Clause. CEO was involved in this case for a long time, first in the lower courts and then in the Supreme Court.  In fact, we helped get Proposal 2 passed in the first place, by releasing studies that documented how heavily racial and ethnic preferences were being used at Michigan public universities.  We joined and helped write a brief urging the Court to take the case, and joined and helped write another brief once the case was on the Court’s docket. We participated in a moot court for the State of Michigan counsel and provided comments on the state’s brief. And we won: The Court upheld Proposal 2. 
  • Shelby County v. Holder – In this case, the Supreme Court struck down the coverage formula of Section 5 of the Voting Rights Act; this should end much of the politically correct racial gerrymandering that was a product of Section 5. CEO again played an important role, filing amicus briefs at both the petition stage and on the merits, and participating in the coordination of other amicus briefs, in addition to Mr. Clegg and I testifying before Congress against re-enacting Section 5 in the first place. CEO is also working to inform the public about why Congress should not undo the good work the Supreme Court did in this case.

Lower Court Cases – CEO has also joined amicus briefs in a number of other recent cases in the lower federal courts. For example, in EEOC v. Kaplan we limited the EEOC’s disparate-impact enforcement policy. We worked with Pacific Legal Foundation regarding its recent cert petition in a case challenging racial preferences in employment, and in a number of federal appellate cases involving racial preferences in government contracting. We are also now working on a wide variety of cases involving the defense of voter ID requirements (where we argue in particular to limit the use of the disparate-impact approach) and in two cases now pending that involve redistricting issues (where we seek to minimize the use of race).  In all these cases we have joined and help write amicus briefs with our allies.

Studies of Racial Discrimination at College and Universities – Another important area of our work is the dozens of studies the Center for Equal Opportunity has published over the years that document the heavy weight given to race and ethnicity in school admissions. By using the universities’ own admissions data, obtained through freedom-of-information requests, CEO has exposed the use of racial preferences in college admissions. Perhaps the most noteworthy of these studies are those that were published just prior to the vote on ballot initiatives to ban such discrimination in California, Washington, Michigan, Nebraska, Arizona, and Oklahoma.  In all six states, the initiatives passed (we were also active in Colorado, the one state where an initiative failed, albeit narrowly).

The release of our Wisconsin studies prompted university officials to instigate student protests resulting in a rowdy mob effort to disrupt our press conference. Our opponents’ efforts backfired, however, and we received excellent national and local media coverage, and an invitation to return to Madison the following month and testify before the state assembly’s higher education committee, which we happily accepted and which enabled us to confront the university’s witnesses there directly.  We have also obtained data from universities in Utah, where a ballot initiative is anticipated, and have published an analysis of that data. We continue to collect data for future studies.

Ending Racial Exclusive Scholarships – The Center for Equal Opportunity has ended racially exclusive scholarships and other programs at dozens of universities all over the country. Our initial successes were with MIT and Princeton; Harvard, Yale, and dozens of others have followed.  We have done so by using university websites to identify such programs, contacting the schools, pointing out the illegality of the programs and, when necessary, filing complaints with the Department of Education.  For these programs, students of all racial groups may now apply. 

Ending Racial Discrimination in Jobs and Contracting – Likewise, the Center for Equal Opportunity has ended racially exclusive job opportunities all over the country.  One widely publicized example involved graduate teaching positions at Southern Illinois University, where our efforts resulted in an end to the program and a front-page story in The New York Times

Frequently federal, state, and local government agencies give or consider giving preferences in the award of public contracts on the basis of race, ethnicity, and sex, but we have been aggressive in opposing them.  For example, CEO uses the Internet to find local news stories reporting that city councils or county commissions are considering such programs; when we do, we immediately email to the relevant officials a customized memorandum that describes the legal and policy objections to these programs (and notes recent decisions holding officials personally liable when they have authorized this discrimination without a solid legal predicate). 

None of this would have been possible without the help of loyal supporters like you. But to continue our efforts, we need your help now more than ever.  Thanks to the sluggish Obama economy, CEO is facing a difficult budget crisis.  Yet no one does the work CEO does on these critical issues. 

And there is much, much more that we do.  We testify before Congress and the U.S. Commission on Civil Rights on issues like whether felons should automatically have voting rights restored (no), whether there should be a commission set up to lay the groundwork for African-American reparations (no again), whether there should be federal legislation on racial profiling (also no), whether Native Hawaiians should be declared an “Indian tribe” so that they can be eligible for preferential treatment (you guessed it:  no), and on many other bills.  

We have pointed out that Obama administration legislation like the Dodd-Frank bill and Obamacare contained, in addition to their other problems, unconstitutional racial preference provisions, and we have worked with Congress to get rid of federal contracting preferences based on race. 

And all that is just at the federal level:  We keep busy at the state and local level, too. For example, we frequently weigh in against racial contracting preferences there as well, and of course there is our opposition to racial admissions preferences at state universities. 

And, in the court of public opinion, we tirelessly write columns, blog, and speak, not only on television and radio, but on university campuses across the country.

The success we’ve recently had before the Supreme Court is nothing new for CEO. From its founding in 1995, in a wide variety of areas, CEO has helped to drastically change the political and legal landscape on:

  • Racial preferences in education, contracting, and employment;
  • The detrimental effects of bilingual education;
  • The rise of multiculturalism in our schools and other institutions; and
  • The importance of assimilation and the impact of immigration on our society.

CEO will be doing all it can to make sure that President Trump makes good appointments, and that his appointees are well briefed on the key issues.

It’s far from a given that the new administration and the new Congress will aggressively advance CEO’s agenda of colorblind equal opportunity—unless we push them to.  Unfortunately, Republicans in Congress have generally been timid on our issues. What’s more, President Trump may be tempted to curry favor with the media and to avoid provoking the protestors by being less aggressive than he ought to be on issues like racial preferences and the “disparate impact” approach to civil-rights enforcement.

This, in our view, would be not just a mistake but a betrayal.  The people who voted to “make American great again” do not want politically correct racial preferences to be invoked when they apply for a job or their children apply for college.  (Politically correct discrimination frequently targets Asians as well, of course, and sometimes Latinos.)  When jobs start returning to the Rust Belt, Trump voters don’t want to be treated unfavorably because their skin color happens to be white.  Nor, for that matter, do those who voted for someone else.

The Left now plays the race card automatically in its politics:  You are told that how you vote is supposed to be all about your racial identity.  It would be a travesty if conservatives accept this.

Left and Right should mutually disarm by burning the race card. In our increasingly multi-ethnic and multiracial nation, the only workable approach to race isE pluribus unum.  We are all Americans.  

And that message cannot be fairly described as divisive, and it should be appealing to the conservative base.  It is, in other words, both philosophically principled and politically saleable.

The Center for Equal Opportunity will be working hard for this in the new administration and the new Congress.  And we are glad that we can, after this election, have some hope of success when we make our arguments in the judicial branch as well, from the Supreme Court on down. 

We need your help to do all this. And we need your help to continue to fight back against the politically correct race-profiteers like Al Sharpton, Jesse Jackson, Black Lives Matter, and their pals in the media.  

We understand money is tight right now for many Americans. Just like many families, CEO runs a very tight budget—and we too have taken a big hit by this economy. Unfortunately, in tough times, one of the first cutbacks families make are donations to charitable causes. 

CEO has led the nationwide fight against racial preferences—so-called “affirmative action.” We’ve persuaded more than 200 schools to open up their minority-only scholarships to people of all colors. We’ve exposed racial preferences in admissions with hard-hitting studies at over 60 colleges and universities. And we’ve had success after success in all three branches of government. 

Will you help by sending a generous donation of $50, $100, $250, $500, or $1000 today? Any donation before the end of the year will be a big help at this critical time.  As always, 100 percent of your donation is tax-deductible to the fullest extent of the law.

I truly appreciate all you’ve done for us in the past.  I hope to hear from you again very soon.

Sincerely,

Linda Chavez
Chairman and Founder

Hope for the Dreamers

If there has been one issue on which President-elect Donald Trump has been loud and clear, it is his desire to end illegal immigration and deport immigrants here illegally. Every time he has seemed to soften his stance, his most outspoken supporters have jumped in to make sure he clarifies that he has no intention of modifying that position. So what will happen with Trump's latest indication that he will "work something out" for those 750,000 young people who were brought here illegally by their parents when they were children and were granted temporary legal status by executive action during the Obama years?

"On a humanitarian basis, it's a very tough situation," he told Time in an article for the edition in which he was named the magazine's person of the year. "We're going to work something out that's going to make people happy and proud. But that's a very tough situation," he said. I hope this signals a new approach.

One thing Trump could do is support legislation that would grant relief to these so-called dreamers, named for the original, GOP-sponsored legislation that would have granted legal status to those whose parents brought them here when they were younger than 15, who have stayed in school and who have committed no crimes since. Sen. Lindsey Graham, R-S.C., Sen. Jeff Flake, R-Ariz., and others are working to put together a version of the former DREAM Act that will be introduced in the new Congress. If Trump were to throw his weight behind this bill, it would go a long way to ensuring its passage. And doing so wouldn't require him to break his promise to rescind the executive actions he intends to abrogate as his first order of business after the inauguration. He could make the revocation of the executive order contingent on the passage of legislation so that dreamers wouldn't be left in limbo.

For those critics who say that this would be just another amnesty, I'd say we shouldn't -- to use an apt metaphor -- throw the baby out with the bathwater in this instance. Yes, the rule of law is important, and some form of penalty is due for those who broke the law knowingly, which is why any legislation that supports legal status for undocumented immigrants must include fines or other measures to ensure that individuals don't get off without some consequences. But with the dreamers, we're talking about children who, in most cases, had no say in whether they crossed the border. I know some of these people, and their stories are heartbreaking.

I met a woman named Ana shortly after I moved to Colorado. I needed help unloading boxes because my husband had broken his foot just before we moved and I was also taking care of my 90-year-old mother. I placed an ad for temporary help, received lots of replies and set up times for applicants to come to my house. After more than a half-dozen people failed to show up, most without even bothering to call, Ana came to the house on time and started helping. I didn't know her legal status, because the job was temporary and nonrecurring and didn't meet the threshold requiring paperwork to find out. She spoke perfect English and talked about her desire to go to college and about her family back in Arizona. It was only when I asked her why she had moved to Colorado that I learned her story.

Ana's parents brought her to the United States from Mexico when she was 2 years old. The parents ultimately received permanent legal status and applied for hers, as well, but the old Immigration and Naturalization Service lost the paperwork, a phenomenon I've encountered many times. The parents didn't bother to file again, and their lives in the U.S. went along happily. Both parents worked and eventually bought a home. Ana's siblings were born here, and Ana attended high school. The whole time, Ana assumed that she had the same legal right to be here as her parents and siblings. But after graduation, she discovered she couldn't get a Social Security card, which she needed to get work, because she lacked legal status. When Arizona passed a referendum making it exceedingly difficult for those who lack legal status to obtain jobs, get driver's licenses or even rent homes, she decided she had to move.

Arizona's loss was Colorado's gain. Ana applied for the Deferred Action for Childhood Arrivals program and compiled hundreds of pages of records showing she had paid taxes, had a clean criminal record and was an upstanding member of her community. But she and some 750,000 others could be sent back to countries they've never known unless Trump delivers on this new glimmer of hope he's offered. Trump prides himself in standing up for the little guy; let's hope he follows through on standing up for young people whose fates are in his hands.

A State of Permanent War

The vicious attack on a Christmas market in Berlin this week reminds us that terrorism has become a fact of life in our world. How do we stop a hate-filled fanatic from ramming a truck into a crowd of holiday shoppers anywhere, anytime? Now that terrorist networks have decided that trucks can be as effective at mass killings as bombs, it will be increasingly difficult to discover and disrupt such attacks. The planning and access to materials required to build, transport and detonate bombs demand a level of sophistication beyond the level of all but the dedicated and connected would-be terrorists. But hijacking a truck and using it as a weapon takes no more skill than that of a common criminal. The wonder is that there have not been more of these attacks on civilian populations in the West.

Increasingly, many people believe that the only way to stop the carnage is to shut our borders to those who might be terrorists. In the wake of the Berlin attack, President-elect Donald Trump said, "You know my plans." But he left open whether he was referring to the wholesale ban on Muslims entering the U.S. he proposed early in his campaign or his revised plan to limit travel from countries with a history of Islamic extremism, which would rule out much of the Arab world, South Asia and even Indonesia and the Philippines. Trump will find implementing such plans difficult, if not impossible. He will be challenged in court, will face serious backlash from the affected countries and could end up playing right into the hands of the terrorist propaganda machine.

Would that it were so easy as building walls and setting up more secure entry systems to stop the terrorist threat in our homeland. Most terrorists who have struck this country have been homegrown, either born in or living in the U.S. much of their lives, and not all of them have been Islamists. Think Timothy McVeigh, who killed 168 people, including 19 children, and injured 684 others by bombing the Alfred P. Murrah Federal Building in Oklahoma City in 1995. Even if we can stop new terrorists from entering the United States, it is nearly impossible to root out every aspiring terrorist already in our midst. That doesn't mean we shouldn't try our best, within constitutional means, but the sad fact is that we will no doubt fail to stop all future attacks.

We live in a time of permanent warfare. Our current wars are not on the same scale as previous wars, but the pain to victims' families is no less for their smaller numbers. The United States lost a half-million lives in the Civil War (at a time when our population was a fraction of today's), over 400,000 during World War II and some 58,000 during Vietnam. We've lost about 2,300 in Afghanistan and nearly 4,500 in Iraq. We have been fortunate throughout our history that most of our battles have been fought on foreign shores, but the war on terror has claimed victims on U.S. soil, as well as abroad. And there is no end in sight for this war.

Our best hope to be victorious in this war is to battle it at its source. We won't defeat the Islamic State group by treating all Muslims as if they are terrorists. Nor should we abandon our constitutional values in hopes of quashing an ideological enemy. But we do have a right to fight the clear and present danger of an Islamic State-led propaganda effort to recruit terrorists from among our residents. We need more and better resources to disrupt Islamic State communication networks. We need continued efforts to dismantle and destroy the terrorist networks in Iraq, Syria and elsewhere. And we need the vigilance of the Muslim community to speak up when a member of the community appears to have succumbed to the attraction of radical Islam.

In the end, we will be victorious in this war because an ideology of hate and subjugation cannot survive forever. But that knowledge is cold comfort to those who will bury their dead this Christmas holiday.

Ten Non-Legal Thoughts

I’m just a poor but reasonably honest civil-rights lawyer, not a political expert or psychologist, but I did have a few thoughts on the post-election fallout that I’m observing:

  1. No one can deny that there is racism in America’s past, and no one can deny that there are still racists. But the problem with the Left is that it willfully exaggerates the amount of racism that still exists — such as when it tells Americans about the racism in their past to the exclusion of everything else, and especially everything positive. That is, its problem is obsession with race and exaggerating racism. But my sense is that we are at a point where a critical mass of Americans is telling the Left, “Enough.”
  2. Jonah Goldberg nailed it recently when he wrote about the incompatibility of race-obsession with reason. Alas, the Left has long been race-obsessed, and so our campuses have come to share that obsession. Don’t believe me? Pick up any issue, any issue, of the Chronicle of Higher Education, or visit Insider Higher Ed on any day, any day. Again, my sense is also that the Left has, with Black Lives Matter and the various campus pubic wars, finally jumped the shark. It has dwindling credibility, and the election results underscore that.
  3. I should note here that you also have to wonder about the good faith of the other side, given the Left’s agenda. The premise of a racist society is helpful to everything in that agenda, and essential to much of it. Thus, the hard Left’s agenda now includes both “diversity” uber alles and reparations; we may be stuck with some form of the diversity shibboleth, but reparations are a political nonstarter — indeed, political kryptonite, and rightly so — that are conceivable only if one believes the worst about this country.
  4. Likewise, one wonders if race relations are actually exceptionally bad right now, or if it is just more fashionable now to say they are bad. The media have no interest in telling the truth on this, because bad news sells. And, again, the Left has its own reasons for wanting race relations to be bad and to be perceived as being bad. I admit that one feels a little silly saying that race relations really are pretty good, looking out at urban riots and campus protests, but in fact they are, if one has any sense of historical perspective at all.
  5. Not that there isn’t unfinished business. But the glass is more than half full — more than three-quarters full — and conservatives want to identify the problems and fix them. The Left is more interested in talking about them forever. Practical solutions are not really what it is after. Indeed, the Left doesn’t want to acknowledge that there can even be solutions, short of the wholesale destruction of current American society.
  6. So part of what’s going on here is ideological. Getting people to believe that there is widespread, intractable racism helps advance the Left’s agenda. And part is psychological. The Left is filled with Atticus Finch wannabes. They want to be the good guy (or gal!) in a drama that has already ended, so they end up being melodramatic. They want to talk about problems forever, rather than solve them. They want to feel sorry for people.
  7. One of the uglier aspects of the Left is its desire to denigrate the accomplishments of the successful. “You didn’t build that!” That’s because undercutting accomplishment is the flipside of making excuses for the dysfunctional, who have to be excused if we are to feel so good about helping them. In both cases, it’s all about removing personal accountability so that the state has more power. Study hard, work hard, and above all quit having children out of wedlock: Are you crazy? No, the solution is more government that I can help run!
  8. Another point related to that is this: It is better to underestimate than overestimate the amount of racism in society and, especially, the degree to which it may deny one opportunities. Racism should not be ignored or excused, but it’s worse for individuals to give up before trying, or to blame the system for what are more likely to be their own failures. Again, if you like personal accountability, you don’t want to worry overmuch about how your best efforts may be thwarted; if you want to excuse those who aren’t trying, then it’s helpful to pretend that their efforts would likely be futile anyhow.
  9. Ask yourself: Is a backward-looking, blame-assigning mindset better for black progress and interracial cooperation than forward-looking, forgiving one? Sure, there is racism, but it’s a bad idea to oversell the amount of it, not only because it discourages hard work, but because it is divisive.
  10. In the end, it’s not that complicated: People should not be treated differently because of their skin color (by governments, private entities, or individuals), and it’s a bad idea to have children out of wedlock. Imagine a country where that was what the elites told us — without exaggerating the amount of racism or obsessing about race. Imagine a country where we celebrated how open all the doors are. We can do that, too, you know. When it comes to race relations, a period of benign neglect is long overdue.

Year-End Thanks to the Senate

As we count our blessings at the end of the year, don’t forget to include thanks to Senator Mitch McConnell and the Senate Judiciary Committee for what they’ve done to keep the federal judiciary from getting any worse than it already is. It’s hard to win even good lawsuits with bad judges.

A few examples that have come across my desk just in the past week or so: George Leef has a fine column on how Grand Valley State University has been sued, rightly, for violating the free-speech rights of its students. Microsoft ought to be sued if it decides to tie the payment of bonuses to how well its managers hit their racial and gender quotas. The Texas State Bar has been sued, again rightly, for its use of such a quota on its board of directors. And here’s a compelling video that Pacific Legal Foundation has posted regarding its lawsuit against a Missouri public-school system for a racial quota that is keeping an African-American student out of a school he could attend if only he were some other race.

More Healing from Our President -- Late on Thursday last week, President Obama announced his appointment of Debo Adegbile to the U.S. Commission on Civil Rights. Mr. Adegbile, you may recall, was rejected by the Senate when he was nominated by the president to head the Justice Department’s civil-rights division, in large part because of his championing the cause of Mumia Abu-Jamal, a convicted cop killer who captured the radical-chic hearts of the hard Left. That was too much even for some Senate Democrats, and the nomination was also opposed by a number of law-enforcement organizations, as discussed in this Washington Times story.

Note also that, according to people I spoke with currently at the commission, the long tradition has been for outgoing presidents to leave to incoming presidents the appointments to vacancies occurring this late in the term.

So nice going, Mr. President: You’ve broken tradition and otherwise gone out of your way to make a divisive appointment on your way out the door — embarrassing members of your own party, sticking a thumb in the eye of congressional Republicans, and angering the police (at this time of all times) since, among other things, it will inevitably be read as signaling your administration’s solidarity with those who stand on the other side of the thin blue line.

Well, the only good that could come of this is that the new Congress and the new president might conclude that the time has come to end the U.S. Commission on Civil Rights. It has long outlived its need: When it was created, nearly 60 years ago, there were few civil-rights agencies in the government at any level, and the work it did in spotlighting and researching civil-rights issues was being done by no one else. Now there are a plethora of such agencies at every level, and there is, to put it mildly, no shortage of people who focus on civil-rights issues, in government, academia, think tanks, you name it.

Rooney Rule Rubbish -- There was a front-page story in the Washington Post last week, which pretends to be a news article but is really an editorial extolling an Oregon state law that requires state-funded schools to follow the National Football League’s “Rooney Rule,” which in turn requires at least one minority to be interviewed when there is a vacancy for a head coaching position. Putting aside my quaint notion that news stories should be unbiased, there are two problems with the Post article.

First, its endorsement of the law is based on the premise that something dramatic must be done to address the shortage of black football coaches. But the article cites no convincing evidence of such a shortage. It says that most football players are black, but that’s not the pool from which coaches are hired. It says that only 7 of 65 Power Five conference coaches are black, and only 14 of 128 major college coaches are black, but in both instances that works out to 11 percent. That, in turn, is not much out of line with the black percentage of the general population, which is 13 percent (and the Post acknowledges that a few years ago the percentage of major college black coaches was actually 18, which means they were then overrepresented). If you factor in the likelihood that most coaches will (a) have a college degree and (b) several years of experience and (c) be male, then I would be astonished if there is any underrepresentation at all.
Second, there is no mention of the fact that the Rooney Rule is illegal. Title VII of the 1964 Civil Rights Act prohibits racial discrimination in private and public employment, and in particular makes it illegal for an employer to “classify his . . . applicants for employment” in a way that discriminates on the basis of race.

It might be objected that there’s no harm here, since it’s only requiring an additional interview. But suppose the shoe were on the other foot, and the requirement was that at least one white candidate always be interviewed. Would that fly?

And there will be harm. Suppose that a team normally narrows the field to four candidates and then interviews them. If it keeps this rule, then if you’re white candidate number four, you’re out of luck, because now you have to make way for the minority interviewee. Suppose the team decides to interview a fifth candidate instead. Well, the minority coach who was the tenth choice now leapfrogs over white candidates six, seven, eight, and nine — all out of luck because they are the wrong color. And, of course, if the minority candidate is hired, then one of the white finalists — the one who would have gotten the job otherwise — is out of luck, too.

Is That All Justice Sotomayor Wants? -- From a recent post at The Weekly Standard:

[Justice Sonia] Sotomayor, one of the Court’s more left-leaning as well as publicly gregarious members, answered questions from interviewer Bill Press and the audience during the course of more than an hour, speaking at length on her formative years in law, her judicial philosophy relative to the late Antonin Scalia and her more originalist contemporaries, and some specific matters of case law she has addressed as a justice during her tenure. One was affirmative action, which has come before the Supreme Court in such cases as Schuette v. Coalition to Defend Affirmative Action (2014) and the Fisher v. University of Texas decisions (2013, 2016).

“Do we still need it?” she asked of the general idea. “If we are committed to ensuring that as a society everyone is stepping outside of their sort of regular routine and stepping outside of what’s easy to do to create a more equal society, then we do need, if not affirmative action, we need that spirit that says we want to be more than we are. We want to be a country that stands as a beacon for every one of its citizens.”

The first of President Obama’s two appointees to the High Court, a summa cum laude graduate of Princeton University, has said she benefitted in part from affirmative action, as she reaffirmed Tuesday. But she also touted the merits of her academic and professional credentials; she’s been a federal judge since Bill Clinton first became president.

“I’m a person who very much doesn’t believe in the old Bakke type of affirmative action, of quotas and things like that,” she said, referencing the 1978 landmark Supreme Court case. “But I do believe that we have to be committed to ensuring that the processes we have in place to select are really selecting on the basis of potential and merit, and not on the basis that happens in many situations: of ingrained habits.”
Well, gee, I too would be happy if universities got rid of “quotas and things like that” and instead were “really selecting on the basis of potential and merit.” That’s not what universities are doing or are likely to do for so long as the Supreme Court allows them to engage in racial discrimination, but it’s very interesting that even the left-most person on the Court feels obliged to distance herself from what the Court is allowing and schools are doing.

Trump's Picks

Like many conservative never-Trumpers, I have decided to take a wait-and-see attitude on the president-elect -- and so far, I'd give him mixed reviews.

Donald Trump has made some good Cabinet appointments. Betsy DeVos is an education reformer who will do well at the Department of Education. Rep. Tom Price as secretary of health and human services starts the job with a sound background in medicine and public policy, and he may actually have some ideas on how to provide health care to those who have trouble affording it while not destroying the world's best medical care system in the process. Similarly, Elaine Chao has credentials as an experienced agency head, having served George W. Bush for eight years as labor secretary, and as deputy secretary in the Department of Transportation, where she will now have the top job.

Mike Pompeo and Jeff Sessions are both clearly prepared for their jobs -- as CIA director and attorney general, respectively -- though the latter's hard-line stance against both legal and illegal immigration is worrisome. Trump's pick for Defense, James Mattis, a retired general who led U.S. efforts in the Middle East as Central Command chief from 2010 to 2013, has drawn praise even from Democrats.

But Trump's choices for Commerce and Treasury are a bit puzzling. Wilbur Ross, his nominee for secretary of commerce, is part of Trump's elite New York billionaires crowd, but he's also a Democrat and protectionist, and at 79, he hardly seems likely to be able to change his tune much. Steve Mnuchin, Trump's pick for treasury secretary, is also an odd one. Trump railed against Wall Street and hedge funds in particular, yet Mnuchin is a veteran of both, having founded his own hedge fund after leaving Goldman Sachs, where he worked for 17 years. What both men have in common is that they are Trump supporters and have lived and worked in the circles Trump is most comfortable in for years.

Too bad the president-elect hasn't occupied himself solely with picking people for his Cabinet and other top posts during the past three weeks. Conservatives might have had their quibbles, and liberals would have had the usual heartburn, but he would have played out the role of his many predecessors properly. Instead, he's taken to Twitter to suggest that flag burners should have their citizenship revoked or be jailed and accused millions of undocumented immigrants of voting in the election. Of course, he did this a lot during the campaign and still won, which seems to be his rationale for continuing to do it. He's also fulfilled one of his campaign promises, to keep several hundred jobs in Indiana at a Carrier plant that was scheduled to move some of its operations to Mexico. He'll be given plaudits by his supporters for this.

But the question remains, Is this what a president should be doing? Meanwhile, he apparently is skipping many of his daily national security briefings and keeps picking up the phone to talk to foreign leaders without any preparation or background to keep him from sticking his foot in his mouth. A call from Pakistani Prime Minister Muhammad Nawaz Sharif to Trump has raised eyebrows. Our relationship with Pakistan is fraught, given the role some believe that Pakistani intelligence has played in fostering terrorism, so Trump's effusive praise for Sharif and the country may prove premature. "Your country is amazing, with tremendous opportunities," Trump said, according to the Pakistani government. "Pakistanis are one of the most intelligent people. I am ready and willing to play any role that you want me to play to address and find solutions to the outstanding problems."

Maybe Donald Trump will grow in the role, learning when not to say anything and, more importantly, learning how to listen to people who actually know what they are talking about. Maybe he'll finally give up his Twitter account, start reading briefing papers and learn something about complex issues he's not been interested in before. Or maybe he will just keep picking good people and let them do the job of running the government. We just don't know yet. We've never had anyone like him in the Oval Office before. The American people placed a big bet. The wheel is still turning, and no one knows where the ball will eventually land.