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How to Discriminate Correctly, in One Sentence

The Left’s view is that “systemic racism” and “institutional racism” and “implicit bias” are all bad except that it is all right to discriminate systematically and institutionally and explicitly against whites and Asian Americans, and in favor of African Americans and Latinos, where the latter two are “underrepresented” in, say, Ivy League admissions or in Silicon Valley, but it is not all right to discriminate against Asian Americans, let alone anyone else, and in favor of whites, period, and so it is also all right to have, say, contracting discrimination programs that discriminate against whites and in favor of African Americans, even if such programs end up also discriminating against other minorities, even Latinos, although you do have to be careful because it might make African American activists mad if those programs give preferential treatment to LGBTQ firms, but the good news is that even if all this civil rights and social engineering ends up actually hurting African Americans that really doesn’t matter — and please don’t make me have to explain all this to you again. 

Setting Straight the Chronicle of Higher Education  In this regard, it is no surprise that some of the worst offenders are in academia, where achieving “faculty diversity” is the order of the day.  After reading article after article on this topic in the Chronicle of Higher Education, I wrote this response, which CHE was kind enough to print:

In themanyarticles that you publish on faculty diversity, there are two recurring problems.

The first is that it is seldom acknowledged that weighing race, ethnicity, and sex in employment selection and promotion is illegal under Title VII of the 1964 Civil Rights Act. Perhaps people assume that, because the Supreme Court has recognized a “diversity” exception to the ban on racial discrimination in student admissions, the same exception must also be available in faculty hiring. But this is not true. A different federal statute is involved, and the Supreme Court has never recognized a “diversity” exception to it (and is unlikely to because, among other things, the statute explicitly provides no “bona fide occupational qualification” with regard to race). I discussed this in greater detail a decade ago in The Chronicle.

This brings us to the second recurring problem: If you begin with the aim of increasing faculty diversity — that is, achieving a predetermined racial/ethnic/gender result — you are already on thin ice, since even if all you do is choose neutral criteria with such a discriminatory aim, you are still discriminating. This is obvious if you put the shoe on the other foot, and consider what the reaction would be if a school decided to select criteria and procedures with the aim of hiring more white males. Legal problems aside, isn’t anyone bothered by the fact that, if you choose people or criteria with any aim other than merit, you are going to have less merit, and so our schools’ research and teaching will be worse? This means, in turn, that the world will be worse off, assuming that research and teaching have something to do with the real world.

General Mills’s New Product: Quota-O’s –   And it’s not just academics and government bureaucrats who buy into this nonsense, alas, but big companies, too. 

Here’s an example:  The Star Tribune reports that General Mills “is pressuring ad agencies to hire more women and people of color by imposing a diversity benchmark,” so that “the creative departments in agencies bidding for its business [will] be staffed at least half by women and 20 percent by people of color.” General Mills executives said, according to the report, that “they want the people who create its advertising to be more reflective of the people who consume their products.” A General Mills spokeswoman was quoted: “We’ll get to stronger creative work that resonates with our consumers by partnering with creative teams who understand firsthand the diverse perspectives of the people we serve.” 

Translation: To figure out how best to sell a box of Cheerios to a black woman, you really have to be a black woman. That’s nonsense, and the real motive here is just the pressure to be politically correct.

The resulting discrimination cannot be justified.  It’s certainly not moral to treat people differently because of skin color; there’s no empirical or historical evidence that, say, the Phoenicians would have been better traders if only they had had greater ethnic diversity; and it’s not logical to suppose that women cannot imagine what might appeal to men or vice versa. I discuss these problems in the broad context here.

But I’m a civil-rights lawyer so let me also point out the legal problems. Certainly it will violate the law for ad agencies to accede to General Mills’s pressure. As always, it’s helpful to put the shoe on the other foot: Could an employer refuse to hire black sales clerks on the grounds that its customers hated to deal with black people?  Of course not, and it wouldn’t matter how stubborn or wealthy the customer was, and of course no judge would care about exploring the reasons for the customer’s desire for discrimination. There’s no “bona fide occupational qualification” for racial preferences under Title VII of the 1964 Civil Rights Act, which prohibits employment discrimination.

Is General Mills itself violating the law? Putting aside Title VII for a moment, there certainly seems to be a problem under 42 U.S.C. 1981, which makes it illegal to engage in racial discrimination in entering into contracts. And I don’t know if one can be held liable for conspiring to violate Title VII or pressuring someone to do so, but that’s exactly what General Mills is doing. 

Intriguing Suggestion from a Reader:  Along these lines, finally, a fellow opponent of racial preferences recently wrote to me and suggested that a letter like this be sent to corporate presidents who loudly “celebrate diversity” at their companies:

Dear Fortune 500 CEO:

            As you probably know, we have recently established the Patrick Chavis Affirmative Action Awards. We believe that you qualify for this prestigious honor. The award honors Fortune 500 CEOs whose personal physicians and/or attorneys are affirmative action admits. Given your and your company’s strong support for affirmative action we are confident you and nearly of your counterparts have such physicians and/or attorneys. If either your personal physician or attorney was an affirmative action admit, we will mail you a check for $1,000.00. If both are, we will mail you a check for $2,500.00 (As you can understand, we will be unable to give awards to individuals who serve as their own physician or attorney or those who have chosen a physician or attorney after the date of the announcement of the award.)

            We have enclosed the appropriate forms and look forward to receiving your application. We urge you to return the forms promptly because there is, unfortunately, only a limited amount of money for the award, and most of your counterparts will qualify. As a consequence, we will be choosing winners on a first come, first awarded basis.

            Thank you for your consideration.

Sincerely,

P.S.  In the utterly unlikely situation that you and your company oppose affirmative action, we will send you a check for $2,500.00. In this case, please contact our office for the appropriate forms.

Not a bad idea!

Law and Order: Good Issue, Bad Messengers

Channeling Richard M. Nixon from the 1968 presidential campaign, Donald Trump has tried to make "law and order" one of his signature issues. In Monday's debate, Trump claimed that "African-Americans (and) Hispanics are living in hell because it's so dangerous. You walk down the street, you get shot."

Trump's caricature is ridiculous -- but that doesn't mean crime is irrelevant to minority communities. Blacks and, to a far less degree, Hispanics are likelier to become crime victims than whites. The homicide rate for black victims is nearly eight times greater than the rate for whites; about 1 in 40,000 whites become a victim of homicide in the U.S. each year, whereas about 1 in 5,000 blacks will be murdered, according to an analysis by Nate Silver of FiveThirtyEight. The homicide rate for Hispanics is about twice that of whites, so about 1 in 20,000.

These statistics are most troubling in light of newly released FBI data that show that homicides went up in 2015. Violent crime had been going down for two decades, but that trend reversed itself in 2015. Homicide increased by almost 13 percent between 2014 and 2015, with blacks accounting for more than half of victims even though they make up only 13 percent of the total population. Hispanics were 16.6 percent of victims, roughly the same as their proportion of the population.

But even if blacks aren't likely to be killed -- homicide still remains a rare phenomenon -- they are likelier to live in cities with high crime levels. St. Louis became the most dangerous city in America, according to an analysis of the new FBI violent crime numbers by The Wall Street Journal, followed by Detroit and Birmingham, Alabama. Indeed, all 10 of the most dangerous cities have large black populations, while only one -- Oakland, California, the ninth-most dangerous city -- had a percentage of Hispanics larger than the national average.

So why aren't more blacks jumping on the "law and order" bandwagon? Perhaps if Trump were not so ham-handed, he might be able to make the issue an appealing one for minority voters. Trumped talked about "stop and frisk" laws, which debate moderator Lester Holt incorrectly suggested has been ruled unconstitutional. (The case Holt referred to was a lower court ruling not applicable outside the court's jurisdiction.) But Trump left it to Hillary Clinton to raise the issue of community policing, an effective and far less controversial method than stop and frisk.

Community policing involves putting more police officers on the street, where they can get to know the people they are sworn to protect. It means police officers walking a beat or patrolling neighborhoods in their cars so that residents get to know the officers before they need police help. But effective policing requires that a certain level of trust be developed -- on both sides of the equation. Sadly, trust between police and minority communities seems to be on a precipitous decline. A whole generation of young blacks is learning to fear the police and not to respect them. At the same time, many police officers -- black as well as white -- behave as if they fear young black men and, consequently, don't always treat them with respect. Meanwhile, many Hispanic immigrants avoid reporting crimes for fear of being deported.

Minority communities would benefit if effective crime-fighting strategies became a focal point of politicians. Unfortunately, neither Trump nor Clinton is well-positioned to make the case. Trump is, deservedly, suspect on the issue. He may talk about his concern for blacks and Hispanics when it suits him, but his racial stereotypes and ugly rhetoric make him a poor messenger. Clinton, on the other hand, worries too much about alienating the Black Lives Matter movement to argue for more cops and fewer criminals out on the street.

If left unaddressed, violent crime will continue to climb. We've had a good couple of decades, but there is no guarantee that crime will remain low. If we're not careful, we could go back to where we were in 1968 -- and the ones who would suffer most would be the great majority of law-abiding black and Hispanic Americans.

Dave Davis’s right to vote

I am proud to announce my first publication in the Guam Daily Post, which ran earlier this month:

On Sept. 1 at the federal courthouse, Dave Davis will argue that the much-discussed status plebiscite should at last be put out of its misery.

It is commonly understood everywhere else that, under the United States Constitution, the right to vote is violated when you parcel out voting rights based on your ethnic group.

But in Guam, it will take judges to enforce the law. The same thing happened, by the way, in Hawaii, and the Supreme Court ruled in Rice v. Cayetano that the state government there could not limit the right to vote to “Native Hawaiians.”

History repeating itself

A long time ago in the American South, states cooked up all sorts of ways to deny the right to vote to black Americans – poll taxes, grandfather clauses and even a pop quiz or two. Courageous white federal judges in the Deep South refused to play the same games. They saw through the ruse and struck down the laws as unconstitutional.

In Guam, who your parents or grandparents are determines if you have a voice in the status plebiscite. Mr. Davis, despite serving his country in the Air Force, didn’t have the right bloodlines to vote in the election regarding Guam’s relationship with the United States. He isn’t among the chosen.
Guam has advanced arguments that would be laughed out of any other American courtroom – that the plebiscite isn’t discriminatory, or it’s OK to give a chosen people a political voice. Already, the U.S. Court of Appeals for the Ninth Circuit Court has rejected the lion’s share of Guam’s argument, finding that Mr. Davis suffered an injury because he wasn’t treated equally and that the plebiscite is an official election affecting government policy.

As Mr. Davis has put it in his argument to the court: “Classifying citizens into different groups with different political rights and permitting only one of those groups to register for and participate in a government-run election denies the disfavored groups their fundamental right to vote. It is, indeed, the antithesis of the principles that the (U.S. Constitution) adopts as a bedrock constitutional guarantee.”

Well said.

People in positions of power in Guam should take notice. It might help to be taken seriously by the United States if you play by the rules everyone in the United States follows.

Blocking access to the ballot because you don’t have the right blood is right out of the Jim Crow South or apartheid South Africa. It has no place where the American flag flies and the Constitution of the United States applies.

Missing in action in the case, by the way, is the Obama administration’s Department of Justice. Alas, the administration has consistently sacrificed its obligation to enforce the laws equally for all Americans on the altar of political correctness. This case is no exception.

Fortunately, the Center for Individual Rights and former DOJ attorney Christian Adams are representing Mr. Davis in his lawsuit to compel Guam to comply with federal law. In a better world, Mr. Davis would have the federal government on his side, too.

This case has dragged on too long and one hopes that the federal court will do what needs to be done and strike down the plebiscite law. Everyone deserves a voice on Guam’s future, not just those who have the chosen parents or grandparents.

Be careful what you wish for

And advocates of discrimination should be wary of what they ask for. The Chamorro population in Guam is now a distinct minority. Dave Davis’ interpretation of the law will prevent future majorities in Guam from enacting creative barriers to the ballot against Chamorros, like the plebiscite does to Mr. Davis.

So those who want to prohibit Mr. Davis from voting in the plebiscite should be careful what they wish for, because the next favored “ancestral” class might not be linked to Chamorro history, but some other group.

Epilogue:  The argument before the court seems to have gone very well.  Keep your fingers crossed.  Oh, and I should note that the Center for Equal Opportunity had filed an amicus brief in the Supreme Court case mentioned above, Rice v. Cayetano, in which we successfully urged the Court to strike down a racially exclusive election in Hawaii.

*          *          *

Judicial Elections and Disparate Impact – Here’s another item regarding the intersection of race, courts, and elections.

The civil-rights Left appears to have a new priority:  Attacking the at-large election of judges when this results in a politically incorrect racial and ethnic mix.  It will instead be insisted that elections be on the basis of racially gerrymandered districts. Earlier this summer, there was a lawsuit in Texas; last week, the complaint was filed in Alabama.

This sort of challenge to at-large elections has long been a staple of the Left when it comes to city councils and the like. But, as distasteful as it is to have racially-defined districts for local politicians, having racially-defined districts for judges takes the yuckiness to a whole new level.  Even Justice John Paul Stevens seemed to recognize that there might be some problems with that

Get used to it.  As the federal judiciary gets worse and worse, from the top down, the Left will get more and more creative in the disparate-impact claims it files. Voter ID? Of course not.  At-large elections for judges?  No way.  A ban on felons voting?  Don’t be silly, and this will apply to felons still in prison.  And don’t be surprised to see lawsuits demanding that 16-year-olds be allowed to vote, and noncitizens as well, since Neanderthal restrictions like allowing only adult citizens to vote have a disparate impact on, for example, Latinos in many jurisdictions. 

Keith Lamont Scott and Daniel Kevin Harris

“Keith Lamont Scott Is Sixth Person to Die in Police Shooting in Charlotte This Year,” says an NBC News headline.  Well, yeah, but if you actually read the story, near the end you learn some interesting facts.  All those shot were men.  Each was 43 or younger.  Four were black, one was Asian, and one was white.  And all except for one was armed.

What’s more, here are the details on the one who was not armed:  “Daniel Kevin Harris, a white, unarmed, 29-year-old, was shot on Aug. 18, after a state trooper tried to pull him over for speeding but he kept driving. He was shot when he finally got out of his car. His family says he was hearing impaired.”

The state trooper was black, by the way.  Somehow, though, his shooting did not prompt riots.  H/t Mike Tremoglie (a former Philadelphia cop). 

There will always be police shootings, and it is a statistical certainty that some of them will involve African Americans, and the law of averages says some of those will involve police who are not African Americans, and inevitably sometimes the circumstances will make it easy to second guess the decisions made by the police.

So it’s illogical to think, “Gee, another black guy shot by a white cop — maybe there really is a problem here.”  It’s wrong to jump to conclusions even in a particular case before all the facts are known.  And it’s ludicrous to pounce on each such shooting as proving anything about the police generally.

*          *          *

One of our frequent allies at the Center for Equal Opportunity in opposing racial preferences is the Mountain States Legal Foundation, headed by Perry Pendley.  MSLF is suing the Obama administration’s Federal Aviation Administration for abandoning a race-neutral system for the selection of air-traffic controllers (in place since 1991) and ending the use of these schools to train them. 

Perry notes that the FAA is insinuating that these schools discriminate against minorities.  The insinuation is a lie, says Perry, but if the Obama administration really believes it, why is it not investigating?  Good question.  He’s posted about it on Facebook and Twitter

*          *          *

The Harvard Crimson editorialized recently on the lawsuit that has been brought against the school for discriminating against Asian Americans in its admissions.  There was so much bad reasoning in the editorial, and the bad reasoning was (alas) so typical, that it is worth annotating. The editorial with my bracketed, italicized annotations follows.

More Nuance in Affirmative Action” [That should be “Preferences Based on Race and Ethnicity.”]

Using the Anti-Affirmative Action Lawsuit to Improve Considerations of Race [Right: “improved” racial discrimination.]

After two years of stagnation, Harvard’s hand will be forced to release six years of admissions data in response to an anti-affirmative action lawsuit. The organization Students for Fair Admissions claims that affirmative action illegally discriminates against Asian-Americans by setting a percentage quota. [Catch that, “illegally discriminates” – as opposed to the legal discrimination against Asian Americans that the Supreme Court has blessed.] U.S. District Judge Allison D. Burroughs has decided that more “comprehensive data” than the basic yearly demographics released by Harvard will be necessary for investigating these claims.

While we strongly disagree with the objective of this lawsuit [I.e., one supposes, stopping racial discrimination of all kinds, including that against non-Hispanic white Americans.], we believe that claims of discrimination against Asian-Americans do justify greater scrutiny of Harvard’s admissions process. Despite the unfortunate and unnecessary context in which it is taking place, the release of additional data is a step towards transparency and a better understanding of this highly selective — and, alas, sometimes equally mysterious — process.

Affirmative action is crucial for diversity on campus. [That is, for skin color diversity. There’s no assertion here that it’s necessary for other kinds of diversity.]  African-Americans and Hispanic students live with many socioeconomic challenges that depress their access to education [So do many white students.  So do many Asian American students.  And many — most — African-American and Hispanic students do NOT face “socioeconomic challenges.”  So why are we using skin color and national origin as a proxy for them? William Bowen and Derek Bok acknowledged in their classic apologia for racial preferences The Shape of the River that only 14 percent of the African Americans admitted to selective schools like Harvard come from low-SES backgrounds.], including the chronic underfunding of schools with students of color at every poverty level, or the psychological traumas that result from fearing or experiencing discrimination. An inability to accept the importance of race in a society that is far from race-blind will feed this cycle of deprivation.

[Note that the justification being offered here for racial preferences has nothing to do with the purported “educational benefits” of “diversity,” which  is the only justification in this context that the Supreme Court has recognized and is, therefore, the only one that Harvard relies on.  Rather, this is a broad claim of “societal” and “historical” discrimination that the Court has rejected.]

Nevertheless, the benefits of affirmative action do not justify fully ignoring claims about Asian-American admissions. [Those benefits, as discussed, are dubious both factually and legally.  And note that there has been no discussion of the undeniable and heavy COSTS of such discrimination, against which the flimsy and disputed benefits must be weighed:  It is personally unfair, passes over better qualified students, and sets a disturbing legal, political, and moral precedent in allowing racial discrimination; it creates resentment; it stigmatizes the so-called beneficiaries in the eyes of their classmates, teachers, and themselves, as well as future employers, clients, and patients; it mismatches African Americans and Latinos with institutions, setting them up for failure; it fosters a victim mindset, removes the incentive for academic excellence, and encourages separatism; it compromises the academic mission of the university and lowers the overall academic quality of the student body; it creates pressure to discriminate in grading and graduation; it breeds hypocrisy within the school and encourages a scofflaw attitude among college officials; it papers over the real social problem of why so many African Americans and Latinos are academically uncompetitive; and it gets states and schools involved in unsavory activities like deciding which racial and ethnic minorities will be favored and which ones not, and how much blood is needed to establish group membership — an untenable legal regime as America becomes an increasingly multiracial, multiethnic society and as individual Americans are themselves more and more likely to be multiracial and multiethnic (starting with our president).]  Crucially, affirmative action ought not to be framed as a zero-sum game where the admission of an African-American or Hispanic student constitutes the replacement of more qualified Asian-American student.  [That may be “crucial” but it’s also obviously false.  Admissions IS a zero-sum game, and less qualified people ARE being admitted over more qualified people.  If preferences weren’t being given on the basis of race, there would be no issue, and certainly no legal issue.] This wrongheaded narrative ignores, among other considerations, the fact that legacy students and others are also granted preference in the admissions process.  [This is what is called “changing the subject.”  The fact that there exist preferences for nonracial reasons has nothing to do with whether racial preferences — which are uniquely ugly and divisive and are the explicit subject of legal prohibitions — are wise or fair.]

Rather than pitting minorities against each other, the greater scrutiny that Harvard is undergoing should shed light on the mechanics of admissions for the sake of transparency. [The fact is that some minorities ARE being discriminated against in favor of other minorities.  This may be inconvenient for the Left’s narrative, but it’s a fact.  It’s also an important fact, because it underscores one of the problems (already noted above) with using racial preferences in a country that is increasingly multiracial and multiethnic.] For instance, one study found that Asian-Americans require 140 more SAT points than white peers to gain entry to private colleges. While statistics like this one may very well be benign, it deserves more attention to counter claims of discrimination.  [It’s unlikely that these statistics are “benign”; it’s also the fact that similar statistics can be deduced for discrimination against non-Hispanic whites vis-à-vis African Americans and Hispanics.]

This lawsuit is a chance for Harvard to reexamine its ambiguous criteria for “well-roundedness” and potentially refine the way it thinks about affirmative action. The current policy may fail to take into account significant variations within race — grouping dozens of countries and cultures into a generalized whole, or overlooking patterns of socioeconomic privilege among individuals.  [True enough.  But these “groupings” are now a favorite tool of the Left, not Right, in distributing privilege.  Hey, here’s a wild idea:  What if we ignored all groupings — and dispense with trying to correct this by coming up with better subgroupings — on the basis of skin color and what country someone’s ancestors came from, and instead judged each person as an individual?]  As Harvard further scrutinizes its admissions policies, we hope that it will find nuances to reconsider. [There’s a time and place for nuance, and there’s a time and place for bright lines.  Racial discrimination falls in the latter category: Just don’t do it.]

Blame Voters, Not the Candidates

In a democracy, we generally get the leaders we deserve. So what does that say about this year's election? Nothing good. It's easy to focus on the faults of the candidates -- and Hillary Clinton and Donald Trump may be the two most flawed presidential candidates in history -- but at the end of the day, the voters chose them. Or some of the voters did, and that is part of the problem.

In the modern world's oldest democracy, we've become complacent. A tiny fraction of eligible voters bother to participate in primaries, and those who do are hardly representative of the broader population. Less than 14.8 percent of eligible voters participated in the GOP primaries, while 14.1 percent voted in the Democratic contests. But even if everyone eligible to vote actually cast a ballot, we'd still have a major problem in the United States.

There is little question that Trump rose to the top of the field among 17 candidates largely because of his celebrity status as a reality TV star. The very qualities he exhibits that turn off many educated voters and principled conservatives made him attractive to the masses who get their news in sound bites from talking heads who shout insults at one another on cable networks. He's opinionated, even when his opinions aren't based on substantive knowledge, and he's willing to say anything to guarantee a lead spot on the day's news coverage.

Our schools have done a poor job of educating students about the U.S. Constitution, American history and our civic institutions. And the poorly educated kids grow into adults who haven't the faintest idea about separation of powers or the protections enshrined in the Bill of Rights, much less basic economics. And we are paying the price this year.

On the one hand, we have Hillary Clinton, who is promising free community college, paid family leave, universal health care and a host of other costly programs, which she thinks she can pay for by upping taxes on only the rich. On the other hand, Donald Trump wants to deploy a deportation force to round up the nearly 6 percent of those in our workforce who are in the country illegally, wants to administer an ideological test to immigrants and visitors to the U.S., which he hopes would weed out Muslims, and says he'd fire much of the top military brass because, as he's asserted before, he knows "more about ISIS than the generals do."

Clinton's appeal is the traditional Democratic sop: Government will take care of you. Trump's appeal is darker: Your problems are the result of foreigners who are invading our country. Depending on where voters fall on this scary spectrum, we will have either a president who expands the role and cost of government at the cost of freedom and a vibrant economy or one who blames ethnic and religious scapegoats for problems at home and abroad and uses demagoguery to whip up mobs, endangering minority protections in favor of absolute majority rule.

Neither prospect is a happy one. Worse is the probability that when voters go into the voting booth, they will most likely be voting their gut, not their head. When our Founding Fathers devised this new form of government -- a representative democracy -- they could not have imagined how it would devolve. There is a real danger that if Americans do not take their responsibilities more seriously, we will lose our freedoms.

The trend in recent years has been to expand the franchise more and more broadly, which in theory is a good thing, but only if the people casting their vote understand the system in which they are participating. Call me an elitist -- I've been called worse -- but I want voters to do more than show up and vote for the person they like the most or against the one they detest. I want them to understand the duties and limits the Constitution imposes on the commander in chief. I want them to have some understanding of the separation of powers, of why majority rule cannot abrogate unpopular but constitutionally protected minority opinions and rights. I want them to be informed enough about the policy differences between the candidates to get some glimpse into how each would govern.

If American citizens don't do a better job living up to their responsibilities in choosing our leaders, we can't expect we will ever get better candidates than the ones we have to choose from this year. We need to quit blaming Clinton and Trump for being bad candidates and look in the mirror to see how they got here.

A conservative successor to Justice Scalia?

The Supreme Court will be back in a week or two, so I thought this would be a good time to share with you an essay I did over the summer and at the request of the website SCOTUSblog:

I’ve been asked to discuss what will happen in the area of racial preferences – a.k.a. “affirmative action” – if Justice Antonin Scalia’s successor is a conservative.

Well, since Justice Scalia was a conservative, then what will happen is basically what has been happening. The new Justice will line up with Chief Justice John Roberts and Justices Samuel Alito and Clarence Thomas, who are pretty much categorically opposed to such discrimination, and will be in opposition to Justices Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor, who can be counted on to defend politically correct racial preferences more or less categorically. And so it will continue to be a Kennedy Court.

And so, as well, we will continue to have to predict what Justice Anthony Kennedy would do in this area. This has always been a tricky business, and even trickier now after his surprising decisions the last two years in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project and the second Fisher v. University of Texas at Austin, in which he joined with the liberals after years of voting with the conservatives (albeit sometimes with narrowing concurrences).

There are those, on both left and right, who read Justice Kennedy’s recent decisions as showing that he is no longer a conservative on issues like affirmative action and its close cousin, disparate impact. Those decisions were certainly a great disappointment to conservatives like me, but the hedging that Justice Kennedy included in them provides some silver linings (discussed here and here) that make me reluctant to write him off as a lost cause quite yet.

More broadly, the bad news is that the use of racial preferences remains too common.  The good news is that such preferences are mostly concentrated in the three areas of contracting, employment, and higher education.  And the further good news is that there is reason for hope in each area if Justice Scalia’s successor rejects them.

Three areas

In government contracting, for example, the Court has already established that preferences will be subjected to strict scrutiny, whatever level of government is involved.  It is unlikely to recognize a compelling interest here other than remedying discrimination, there being no uniquely African-American perspective on, for example, how to pave a road.

Even more critically, contracts are not like employment selection or university admissions, where there is often an irreducible and significant amount of subjectivity in the decision making.  Rather, the low-bid process in government contracting (and subcontracting) can be made very transparent at every step, and this transparency should make it relatively easy to achieve any remedial purpose, that is, to detect and correct discrimination.  This is an area where, as Chief Justice Roberts wrote famously, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

Accordingly, the Court should make clear that, in 2017, the narrowly tailored way to remedy discrimination in the award of government contracts will not involve preferential treatment. Recall that Justice Kennedy, in the Fisher cases, emphasized that the “narrow tailoring” requirement is to be taken seriously.
Employment is like contracting in that the Court has never recognized a “diversity” rationale (nor is it likely to do so, since the key federal statute, Title VII of the 1964 Civil Rights Act, allows no “bona fide occupational qualification” for race).  Once again, the predicate is essentially remedial, requiring an employer that wants to use preferences to show a “manifest imbalance” in a “traditionally segregated” position.  One hopes that, sixty-two years after Brown v. Board of Education and fifty-two years after the 1964 Civil Rights Act, there is not much traditional segregation left – especially at companies that have cheerfully been discriminating in favor of “underrepresented” minorities.

The Ricci v. DeStefano decision in 2009 now further suggests that an employer’s track record of discrimination against, say, Latinos has to be so bad and so recent that, if it did not provide them a preference, there is a “strong basis in evidence” that it could be successfully sued for that failure – a very high bar.  If, per Ricci, an employer cannot legally engage in disparate treatment unless there is a strong basis in evidence that it would otherwise lose a Title VII lawsuit, why should it be able to engage in disparate treatment when it is not motivated by fear of a Title VII lawsuit at all?

So what’s needed in the employment area is for the Court to clarify the remedial predicate required by Title VII, and to interpret the legal standards in Steelworkers v. Weber and Johnson v. Transportation Agency to conform with the one articulated in Ricci.  Any employer that wants to use otherwise forbidden disparate treatment must have “a strong basis in evidence” that it would otherwise be liable, and that evidence would typically include not only severe statistical disparities (“manifest imbalance”) but also recent discriminatory practices (“traditional segregat[ion]”). This is similar to the standard Justice Sandra Day O’Connor supported in her concurrence in Johnson.

Or the Court could simply overturn Weber and Johnson, since those much-criticized and unstable opinions also held that preferences cannot “unnecessarily trammel” the interests of nonpreferred employees – and, in 2017, there will never be a situation where the “necessary” way to fight discrimination is through more discrimination, rather than simply stopping discrimination.  The decisions are now obsolete by their own terms. I note again that Justice Kennedy has in past cases emphasized the importance of putting real teeth in “narrow tailoring.”

It is the third and remaining area, higher education, where perhaps the Court now has the most heavy lifting to do.  There’s no way around the fact that, to end racial preferences here, it must overturn Grutter v. Bollinger and, in particular, the holding there that the educational benefits of racial diversity in a student body are so compelling as to justify discrimination in order to ensure them.  The fundamental problem in Grutter is that the social-science evidence cited is uncertain and the purported benefits only marginal; furthermore, the Court did not weigh the heavy costs of such discrimination.  In his opinion in a more recent case involving the alleged educational benefits of diversity, Parents Involved in Community Schools v. Seattle School District No. 1, Chief Justice Roberts nodded toward such benefits being “dispute[d]” and “intangible,” while “the costs are undeniable.”

Surely all this has to be weighed in determining if the asserted interest in compelling.  The result will simply move up by a few years Grutter‘s self-imposed 2028 expiration date.

But the obvious question is whether Justice Kennedy would be willing to overturn Grutter when he was not even willing to rule against the University of Texas in Fisher II. It certainly is an uphill battle, but not necessarily a hopeless one.

Grutter was not directly challenged in the Fisher cases, and of course we are not yet at its twenty-five-year expiration date. The social science evidence is changing – consider the overwhelming documentation now of the “mismatch” problem – and the demographics of the country are, too. One of the cases in the lower-court pipeline directly involves allegations of politically correct discrimination against Asian Americans, the fastest growing racial group in America. Perhaps this context would be a better one in which our new Justice could persuade Justice Kennedy that, you know, Tony, it’s simply untenable in our increasingly multiracial and multiethnic society for our major universities to be sorting people according to skin color and national origin and treating some better and others worse depending on which silly little box gets checked.

The unrest on our campuses is very much a two-edged sword as well. It might frighten Justice Kennedy from ending racial preferences; on the other hand, it underscores the poisonous effects that political correctness and identity politics have had on campus, and argues for an end to the Court’s complicity in this nonsense.

Voting and disparate impact
A couple of other points, related to one another.  We could plausibly add voting, and especially redistricting, as a fourth category in which racial preferences are common.  In particular, Sections 2 and 5 of the Voting Rights Act have been frequently used to require racial gerrymandering designed to advantage minority voters.  This is done through a “results” and “effects” test, respectively.  Each is an example of a “disparate impact” mechanism, which is also found in Title VII of the 1964 Civil Rights Act (and, allegedly, in some other federal statutes, and, inarguably if illegally, in a variety of federal regulations).  Practices, procedures, and selection criteria that are nondiscriminatory by their terms, intent, and application are nonetheless deemed discriminatory because they lead to racially disproportionate results.

Thus, this approach, in the name of nondiscrimination, bans selection devices that no reasonable person would label as discrimination, and, what’s worse, drives many public and private actors to adopt either overt or covert racial quotas.

So, when the Court finishes getting rid of overt racial preferences in contracting, employment, and higher education, it can also strike down the disparate-impact approach as a form of racial preference.  Justice Scalia signaled his willingness in this regard in his separate concurrence in the Ricci case, and in a footnote in his opinion for the Court earlier in Alexander v. Sandoval. His conservative successor would do the same. Here again, though, the fifth vote would have to be Justice Kennedy’s, and, after his opinion in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, it cannot be counted on.

The Court has already effectively, and rightly, ended the use of Section 5 and its “effects” test; likewise, it should cabin the “results” test under Section 2 so that it focuses as much on disparate treatment and as little on disparate impact as possible. It’s remarkable that, though the “results” language was added in 1982, there has been very little case law to date, especially from the High Court, on its meaning outside the redistricting context.

Sex and a smile

I’ve focused on race here, but much of what I’ve written applies to sex discrimination and preferences as well. I’ll add only that a conservative successor to Justice Scalia would interpret the word “sex” in federal statutes like Title IX of the 1972 Education Amendments and Title VII to mean “sex,” and would reject the absurd arguments that it means “sexual orientation” or “gender identity.” If Congress wants to amend those statutes to read that way, that’s its job, not the Court’s.

A final, happy note: If a conservative replaces Justice Scalia, we can deduce that Hillary Clinton is not President of the United States and that someone else is. This means that there is a chance that there will be other conservative appointments to the Court, although it is also possible that future picks might be Donald Trump’s sister or Donald Duck. There is also a chance that future oral arguments will be held in the Huge Trump Courtroom at the remodeled Old Post Office Building. It also means that we are living in an alternative universe, in which SCOTUSblog may pay me a gazillion dollars for this essay and I can happily retire to a luxurious condo on a distant planet.

Donald Trump Ends Up Where He Started

Donald Trump's immigration "pivot" has been more like a whirling dervish act these past few weeks. He's gone from meeting with Hispanic leaders, promising to soften his position, to sending out his surrogates to make mutually contradictory promises that he definitely would or would not find a way to allow some undocumented immigrants to stay in the U.S. Then on Wednesday, he jetted off to Mexico for a photo-op with President Enrique Pena Nieto. He held a short and mild-mannered news conference afterward but ended the day delivering a rant in Phoenix that reiterated his commitment to deport everyone here illegally and also his goal of restricting legal immigration in radical ways. So what are voters left with, besides a bad case of vertigo?

Most commentators after Trump's speech focused on his tough line on getting rid of immigrants already here illegally. Indeed, he broke new ground in his Phoenix speech, promising to revoke not only President Barack Obama's executive action giving temporary reprieve from deportation to the undocumented parents of American-born children but also Obama's earlier, mostly noncontroversial executive action that temporarily shielded undocumented immigrants who were brought here as children. The courts struck down President Obama's executive action for parents of American-born children but did not touch the exemption for young adults who came illegally as children. Trump now seems ready to deploy his new "deportation force" to rid the country of law-abiding young people who've lived here for as long as they can remember and know no other home.

This callousness has already prompted some of Trump's National Hispanic Advisory Council to quit, most notably Alfonso Aguilar, former chief of the U.S. Office of Citizenship in the George W. Bush administration, businessman Jacob Monty and Pastor Ramiro Pena, who offered a stinging rebuke after the speech. "The 'National Hispanic Advisory Council' seems to be simply for optics and I do not have the time or energy for a scam," Politico reports Pena as writing to campaign and Republican National Committee officials.

Less noticed in Trump's speech were his words on legal immigration -- but in many ways, they are the most radical thing he said. Trump has, from the beginning of his campaign, surrounded himself with immigration hard-liners, not just people concerned about illegal immigration. It's no coincidence that accompanying Trump on his visit south of the border was Sen. Jeff Sessions, arguably the most anti-immigrant politician since Sen. William Paul Dillingham, whose opposition to immigrants from southern and eastern Europe resulted in the first mass restriction legislation in the early 1900s. And whenever Trump cites studies on the supposed ill effect of immigration, they are usually from the restrictionist Center for Immigration Studies, which not only opposes illegal immigration but, more importantly, wants to put strict limits on legal immigration, as well.

Conservatives have tried to argue for years that they are not anti-immigrant, just anti-illegal immigration. And most, I believe, are sincere. But goaded by Sessions and restrictionist organizations such as CIS, Trump made clear in Phoenix that he wants to return to the days of Dillingham.

"We take anybody," Trump said, referring to current law. "Come on in, anybody. Just come on in. Not anymore," he vowed. What he was promising was to roll back the 1965 immigration law that abolished quotas on national origins put in place a half-century earlier to favor immigrants from northern Europe. In its place, Trump says he wants "to keep immigration levels measured by population share within historical norms," and he's not talking about recent years or even the levels of the early 20th century. He wants fewer immigrants, period, and he wants to make sure immigration does not upset the historical racial balance of the U.S.

Trump also said he will "select immigrants based on their likelihood of success in U.S. society." The language may sound benign, but the sentiment is not all that different from what prompted Dillingham and others in the early 20th century to want to keep out Italians, Slavs and others deemed inferior to people of northern European descent.

It's easy to forget that anti-immigrant fervor isn't new. Trump and his most fervent followers may want to bar Mexicans and other Latinos now, but the grandparents of many of the people gathered in Phoenix this week to hear Trump speak faced the same opposition when they came from Ireland, Italy, Greece, Czechoslovakia, Hungary, Poland -- and, yes, Germany, where Trump's grandfather was born.

Donald Trump's runaround on immigration the past week leaves him right about where he started -- demonizing people based on not just how they got here but where they come from.

Age Matters for Clinton and Trump

In March 2015, I wrote a column suggesting Hillary Clinton was too old to run for president. It generated a lot of blowback, as I suspected it would, even though she hadn't yet formally announced her candidacy. Carter Eskew, who ran Al Gore's media campaign in 2000, berated me in The Washington Post for "the sexist and ageist nature" of what I had written and called it "remarkably outrageous." But Clinton's recent bout of pneumonia and episodes of appearing to lose her balance in public raise important questions, and age should not be off-limits as a topic. To be clear, the same concerns apply to Donald Trump -- in my view, even more so.

No matter who wins the election this year, we will be getting a president not in his or her prime. Why do we have to pretend that age doesn't matter anymore -- that 70 is the new 60 or even the new 50? Yes, we're living longer, but our bodies and minds deteriorate over time, no matter how well we take care of ourselves.

I say this as a 69-year-old woman who eats well, walks 4 or 5 miles nearly every day, works long hours, travels 75,000 miles a year, writes prolifically and is in generally good health. But I can't pull an all-nighter working on an article as I did even a few years ago or do a 10-mile mountain hike without paying the consequences.

It is foolish for most people my age to pretend they have the same energy, stamina or capacity they did when they were young. There are exceptions -- athletes and fitness fanatics, perhaps -- but neither Clinton nor Trump falls in those categories, which is why it is so important that both of them release their medical records. Clinton, despite hiding her pneumonia from the public for several days after it was diagnosed, has been far more forthcoming than Trump. She's released a list of her medications and details about her history of hyperthyroidism and deep vein thrombosis, as well as information on a concussion she suffered while secretary of state.

Trump, on the other hand, has given virtually no useful information. On Thursday, he pulled a typical Trump public relations stunt by going on "The Dr. Oz Show," releasing the barest of details about his health but not the actual medical records.

Campaigns are grueling, and it's no wonder Clinton became ill, especially at her age. According to the National Institute on Aging, "a lifetime of stress on our bodies is thought to contribute to immunosenescence," or the gradual deterioration of our immune systems' ability to respond to infections or receive protection through vaccinations. Clinton was vaccinated against pneumonia, according to her doctor, but she got it anyway, which suggests her immune system didn't respond as well as might a younger person's.

But if Clinton's age is a factor, Trump is even older and is hardly a fit specimen. So why hasn't Trump become ill on the campaign trail? Maybe he has. Who knows? He's not the same kind of retail politician as Clinton, and his schedule has been lighter than hers. He takes days off from campaigning, travels in luxury and infamously dislikes shaking hands (though he seems to do it more often now than in the primaries). Maybe he is as healthy as he claims to be, but his late-night tweets, his repetitive speech patterns, his apparent inability to learn anything about public policy, his memory lapses -- even about his own statements -- his paranoia and his conspiracy theories all raise at least the possibility that he's suffering some cognitive decline. Given the choice between a candidate who is physically less robust and one who's declining mentally, I'd say the latter is scarier.

The Constitution bars candidates below the age of 35 from running for president, and no one complains. Maybe it's time we think about upper limits, as well. Nearly three-quarters of S&P 500 companies have mandatory retirement policies in place for their corporate directors, and about a third of big corporations set upper limits on the age of CEOs, as well. Although a 1986 law prohibits employers from forcing retirement because of age, important categories are exempt, including airline pilots, air traffic controllers and law enforcement officers. The presidency is certainly more complex and demanding than any of those jobs.

The 25th Amendment provides for the removal of a president who becomes incapacitated, but is it really so outrageous to consider whether we need to put a cap on the age at which a president can be sworn in, too? It's just hubris to pretend age is totally irrelevant to the ability to do the job. Sure, the voters are capable of deciding the issue in most elections. But this time around, they really have no choice.

Trump's Amnesty Plan

It would be funny if the stakes weren't so deadly serious. Donald Trump, who launched his campaign for the presidency by attacking Mexican immigrants as "rapists" and "criminals," is suddenly embracing the idea of working out a way to give legal status to undocumented immigrants who have been here a long time and have kept out of trouble.

Trump won't call it amnesty, of course, but his position is little different from what's in the "Gang of Eight" bill his allies on conservative talk radio and cable shows have been deriding as amnesty for years. Of course, Trump's position could change again between the time you begin reading this column and the time you finish it, but for the moment, let's take Trump at his (latest) word.

In a town hall meeting hosted by Sean Hannity this week, Trump said the following: "Everybody agrees we get the bad ones out. But when I go through and I meet thousands and thousands of people on this subject, and I've had very strong people come up to me, really great, great people come up to me, and they've said, 'Mr. Trump, I love you, but to take a person that's been here for 15 or 20 years and throw them and their family out, it's so tough, Mr. Trump.' I mean, I have it all the time. It's a very, very hard thing." Indeed.

Trump said his version isn't amnesty. "No citizenship. Let me go a step further: They'll pay back taxes. They have to pay taxes. There's no amnesty, as such, there's no amnesty, but we work with them," he said.

Has Trump even read the Senate's Gang of Eight bill?

The legislation, sponsored by four Republicans -- Sens. John McCain, Marco Rubio, Lindsey Graham and Jeff Flake -- passed the Senate in 2013 but subsequently died in the House after conservative talk radio and cable news shows sparked a populist assault on the bill by crying "Amnesty!" But many of the bill's actual provisions would be much tougher than Trump's latest, admittedly sketchy, plan.

Immigrants who entered illegally would have to not only pay back taxes but also pay a $1,000-per-person fine, learn English and remain employed. Though the bill would provide a so-called path to citizenship, following that path would take a long, long time. During the first 10 years, the immigrants would be eligible for renewable temporary permits and then could apply for permanent residency. Only after three additional years -- 13 years in total -- could they apply for citizenship, and they would have to meet all the usual requirements to qualify.

Most importantly, all the provisions easing access to legal status for the undocumented would require that the government demonstrate that border security has improved significantly. Toward that end, the legislation would include an additional $3 billion in funding for more drones and other security measures, allow for the hiring of 3,500 additional border agents, and appropriate another $1.5 billion for more border fencing. The Department of Homeland Security would have to demonstrate it has achieved 100 percent surveillance along the Mexican border and can apprehend 90 percent of unlawful crossers at high-intensity cross points along the southern border before any permanent status or citizenship could take place. Moreover, no previously undocumented immigrant would be provided permanent resident status until all current legal applicants receive their green cards.

The bill is far from perfect, but it's not the free ticket to citizenship for lawbreakers that its detractors claim. Trump's latest comments that it makes no sense to deport millions of people who have lived in the U.S. for a decade or more -- which constitutes two-thirds of the undocumented immigrants here now -- are a far cry from what he had been saying for the previous 14 months. If he were a serious man rather than a provocateur, he'd have figured this out a long time ago. Better late than never? Maybe. We'll see how long he sticks to this new proposal after the anti-immigrant crowds he's stirred up turn on him.