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Sat11182017

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We Need More Black Drug Dealers

According to this Washington Post article, black Maryland state legislators are “planning to propose emergency legislation to address the dearth of minority-owned businesses approved to grow medical marijuana in the state.” 

There’s a federal constitutional problem here, though: A predicate for racial preferences in government contracting is a demonstration that there has historically been discrimination in the industry involved. Medical marijuana was legalized in Maryland only a couple of years ago, so one wonders how much discrimination there has been, historically, in an industry that does not yet actually exist. 

But never mind all that.  “This is a good modern-day civil rights fight,” says Del. Cheryl D. Glenn (D., Baltimore) of the Legislative Black Caucus. 

Well, maybe not “good,” but certainly typical. 

DOJ Warns Landlords against Refusing to Rent to People with Criminal Records

This month the Justice Department filed a “Statement of Interest” in a housing case, warning landlords that refusing to rent units to people with criminal records can run afoul of the Fair Housing Act.  The reason?  Because such a refusal can have a “disparate impact” on the basis of race and ethnicity.

I believe this may be the first such filing by the Obama administration since, alas, the Supreme Court’s 5-4 ruling last year that disparate-impact claims may be brought under the FHA, but it is no surprise. The Court was warned, by my organization and others, that this was a logical consequence of interpreting the Act this way, and HUD guidance from earlier this year contained the same warning for landlords.  But Justice Kennedy disappointed us by voting with the four liberals.

It’s easy to come up with hypotheticals of silly rules landlords might have (refusing to rent to someone who ran a stop sign 50 years ago?), but of course the issue is: Who decides whether the rule make sense or not, the person who owns the building or a federal bureaucrat? And of course it makes no sense at all to say that silly rules are fine if they result in no racial or ethnic disproportion, but are of great interest to the federal government if they lead to such politically incorrect imbalances. 

Thanks a lot, Justice Kennedy.

Call Your Office, Michelle Alexander – So much for the war on drugs being a thinly disguised racist war on African Americans:  The gist of this front-page story in the New York Times is that the war on drugs is increasingly rural/white rather than urban/black.

The Balkanization Administration, Part II – This week the Center for Equal Opportunity filed a short comment, opposing the Obama administration’s proposal to ramp up the use of racial classifications by the federal government.  To give you the background, I’m going to reiterate an earlier summary of this bad proposal, and then present you with the comment itself:

If there’s one thing that this country needs more of, it’s racial division.  That, at least, seems to be the view of the Obama administration.

As Mike Gonzalez of the Heritage Foundation writes in this Issue Brief posted recently:

On the first day of Congress’s recess, the Obama Administration recommended the most sweeping changes to the nation’s official racial and ethnic categories in decades.  The two most significant proposals were creating a new ethno/racial group for people who originate from the Middle East and North Africa (MENA) and taking from those who identify as Hispanic the option to identify their race. The Office of Management and Budget (OMB) Notice asked for comments to be submitted within a month—the shortest window possible—for what it described as a “limited revision” of data collection practices.  Far from limited, the proposals would have long-term consequences for how one-fifth of all Americans are defined demographically and would create more societal conflict over racial preferences and political gerrymandering. The American people deserve more than a month to debate such significant changes, and Congress must weigh in.

Mr. Gonzalez concludes:

The OMB states that America’s increasing ethnic diversity requires more and more group classifications. An equally practical, and much preferred, policy response would work to smooth out these differences by promoting assimilation, which was the policy approach taken for the first two centuries of the Republic. That approach succeeded in achieving what was thought by many to be impossible: It created a cohesive American population out of many and vastly different peoples.

I should add that the administration has also recently announced that it is pushing ahead with its proposal to encourage the creation of a Native Hawaiian “Indian tribe,” despite Congress’s longstanding refusal to endorse this additional balkanization of our country. 
All this in addition to its usual support of racial and ethnic preferences of all kinds, its aggressive use of the “disparate impact” approach to civil-rights enforcement, and its encouragement of racial grievance hustlers in our inner cities.

I remain optimistic about America continuing its remarkable progress toward the realization of its E Pluribus Unum ideal, but increasingly that optimism is possible only if one takes the long view and ignores what’s going on during this administration. 

So here’s the brief comment on the Obama administration proposal that we filed this week:

The proposal (specifically, adding “MENA” as a racial category and effectively making “Hispanic” an exclusive racial/ethnic identifier) is a bad idea. 

There are costs whenever the government uses racial and ethnic classifications.  [See this testimony before the U.S. Commission on Civil Rights:  http://www.ceousa.org/attachments/article/1048/CleggStatementMay2002.pdf .]  The data collected can be misused — the notice, indeed, contemplates that the data here will facilitate the use of “affirmative action” (that is, racial preferences) and “reviewing … redistricting plans” (that is, mandating racial gerrymandering) — and the very process of collecting the data and requiring Americans to identify themselves along racial and ethnic lines is divisive. 

What’s more, any benefits of such data collection are dubious when the categories used are artificial and heterogeneous, as “Hispanic” and “MENA” are.  [This point, among many other excellent points, is made by Peter Kirsanow of the U.S. Commission on Civil Rights here:  http://www.newamericancivilrightsproject.org/wp-content/uploads/2014/03/OMB20MENA20racial20classification20comment.10.12.2016.pdf .] If the costs are serious and undeniable, and the benefits are few and marginal, then it makes no sense to go down this road.

In all events, a big step like this away from the principle of E pluribus unum should be undertaken only through Congress.  [Once again, this point among other excellent points is found in the discussion here:  http://thf-reports.s3.amazonaws.com/2016/IB4614.pdf .] 

The federal government itself should not be putting people into racial boxes, nor encouraging other people to do so or to think of their fellow citizens in these terms, nor encouraging individuals themselves to identify as something other than simply “American.” 

We need less identity politics, not more.

I also discussed the proposal last week on this Federalist Society teleforum (it lasts about an hour; I come in at the 10:20 mark).

The Party of Trump or Ryan?

In a little more than a week, the Republican Party will undergo a major realignment. Either it will become the party of Trumpism, with or without Donald Trump in the White House, or it will become the party of House Speaker Paul Ryan and other economic and foreign policy conservatives. The wheels were set in motion for this realignment in 2010, when local tea party groups emerged as a loose coalition of anti-establishment Republicans.

Though the different factions of the tea party differed in their focus on major issues from state to state, they had a few elements in common. Tea partyers were as suspicious of big business as they were of big government. They were uneasy with the demographic changes taking place in the country and feared that multiculturalism and multilingualism would fundamentally change the nature of what it means to be American. They were older, likelier to be on Social Security and Medicare, and therefore suspicious of broad entitlement reform. And because they prided themselves as a bottom-up movement, many in the tea party rejected the leadership of the Republican Party and the agenda that had defined the GOP for a generation or more.

Populism became the face of this new brand of Republicanism, and it was ripe for someone like Donald Trump to capture. Paul Ryan, on the other hand, emerged from the deep roots of traditional Reagan conservatism. Those in the Ryan wing of the party were the inheritors of not only Ronald Reagan but also Jack Kemp, a former quarterback elected as a congressman from New York who became George H.W. Bush's HUD secretary and then the 1996 Republican vice presidential nominee. Reagan and Kemp were optimistic men who sought to broaden the GOP's appeal beyond the base.

Ryan's supporters come from the business community, large and small, and suburbia. They want lower taxes and less government regulation and see the private economy as the country's main engine of growth. His supporters are champions of free markets and free trade, viewing both as the path to prosperity for all Americans. They see immigrants as a resource for the future and believe that no matter where they come from, people seeking to immigrate to America will follow in the footsteps of all previous groups by learning English, moving up the economic ladder and becoming a part of the great melting pot.

But there are temperamental differences between the two faces of the Republican Party, as well. The Trump wing is motivated by anger and resentment. Its members believe they've been cheated in the new economy, with rewards going only to whom they deem as the elites -- those with college educations and advanced degrees, who they think look down on them. And they aren't entirely wrong about the latter.

Whereas the Trump supporters are angry, the Ryan wing of the party is cerebral, maybe too much so. Speaker Ryan told members of his party in December: "If we want to do what we believe in, then we need a mandate from the people. And if we want a mandate, then we need to offer ideas." He laid out those ideas over the summer in his "Better Way" plan, which included tax reform, a balanced budget, health care reform, improved national security and the elimination of poverty. As comprehensive and impressive as the Ryan agenda is, it lacks the emotional appeal of "Make America Great Again" or "Build a Wall," something to rev up audiences and rally around.

If the GOP were to become the party of Trump, I believe that it would wither and die. Demographics alone would doom it, and not just because whites are shrinking as a proportion of the population. Any party hoping for majority status has to appeal to college graduates and women, at a minimum.

But the Ryan wing of the party faces challenges, as well. It's got to convince the Trump supporters that free trade benefits all Americans, especially working-class Americans, whose dollars go much further because of access to more affordable goods. It needs to convince those voters that newcomers aren't just cheap labor, that they fill important niches in the economy that keep jobs in the U.S., benefiting everyone. And it has to come up with an emotional appeal that has thus far been lacking in its wonkish agenda.

If Hillary Clinton wins the presidency, opposition to her big-government programs, tax increases, court nominees and nanny-state proposals will undoubtedly unite Republicans temporarily. But the party will still have to put together a winning coalition of voters if it is ever to win the White House -- which will require much fence-mending and outreach to those turned off by the 2016 presidential race.

Do Non-Citizens Vote?

Do non-citizens vote?

Yes, they do, according to this study — and they vote quite a bit.  Here’s the abstract:

In spite of substantial public controversy, very little reliable data exists concerning the frequency with which non-citizen immigrants participate in United States elections. Although such participation is a violation of election laws in most parts of the United States, enforcement depends principally on disclosure of citizenship status at the time of voter registration. This study examines participation rates by non-citizens using a nationally representative sample that includes non-citizen immigrants. We find that some non-citizens participate in U.S. elections, and that this participation has been large enough to change meaningful election outcomes including Electoral College votes, and Congressional elections. 

Something to keep in mind the next time you hear there’s no such thing as voter fraud.

An Irresponsible Dissent – Speaking of voting, here’s another item.  Unhappy with the fact that the majority reversed, though only in part, a district court decision striking down two Ohio statutes — that “(1) required county boards of elections to reject the ballots of absentee voters and provisional voters whose identification envelopes or affirmation forms, respectively, contain an address or birthdate that does not perfectly match voting records; (2) reduced the number of post-election days for absentee voters to cure identification-envelope errors, and provisional voters to present valid identification, from ten to seven; and (3) limited the ways in which poll workers can assist in-person voters” — a federal appellate judge has written a dissent that includes 11 pages worth of photographs of civil-rights martyrs. 

This is irresponsible behavior for a judge. To compare relatively minor, routine administrative changes such as these to the horrific murders and other terrible events that occurred during the Jim Crow era is wholly unjustified.  To complain that the majority is trying to “reverse the progress of history” in taking one side or the other in a dispute over a seven-day vs. a ten-day deadline for a voter to cure an absentee ballot problem is bizarre to say the least. 

We expect such histrionics from activists, community organizers, and (alas) even politicians and football players, but we ought to hold members of the federal judiciary to a higher standard.

Survey of University Admission Directors –Inside Higher Ed had a story recently on its latest survey of college and university admission directors, and it contains much of interest.

For example, “in a potentially notable finding, a significant minority of college admissions directors now say (in contrast to past surveys but consistent with the views of many advocates for Asian-American applicants) that their colleges generally admit only Asian applicants with higher grades and test scores than other applicants.”  That is, four out of ten directors at both public and private schools indicated that they believe Asian-American applicants are held to a higher standard at “some” places; and 41 percent of public-school respondents and 30 percent of private-school respondents admitted that this was the case at their own university or college.  That is, indeed, “notable.”

Another juicy tidbit has to do with this summer’s Supreme Court ruling in Fisher v. University of Texas, upholding that school’s use of race and ethnicity in admissionsThe new IHE report notes that the Court “cited the research the school did over the years to show why it needed to consider race in admissions — and the decision said that colleges need to have conducted such studies to consider race.” But, the report continues, the recent “survey results suggest that relatively few colleges have done or plan to do such studies.”  Indeed, “only 13 percent of colleges said they conducted studies similar to those the Supreme Court cited as making the Texas approach legal. And only 24 percent said they planned to either start or continue such studies.” And this, the report correctly notes, “could make some colleges vulnerable to lawsuits.”

To look at it another way, three out of four schools interpret Fisher as giving them a green light to engage in admissions discrimination for the foreseeable future, and only 4 percent said they planned to change admissions practices in light of the Court’s ruling.

Good News, Bad News, Good News – I see that Ian Tuttle has an article in National Review on the University of Chicago’s recent “small blow for learning” — that is, the recent letter to incoming freshmen from John Ellison, dean of students, promising and defending true freedom of speech and thought. 

Alas, Inside Higher Ed reports that 150 faculty members there have written their own open letter to freshmen, pushing back. But George Leef also has, as it turns out, an article already defending the Ellison letter from its critics. 

So when it comes to speech there’s plenty to talk about.

An Issue That Won't Be Solved With Insults or Pandering

No issue has generated more heat in this year's presidential election than immigration -- but neither Donald Trump nor Hillary Clinton shed much light on the issue in their third presidential debate. Trump made his usual promise to build a wall and added to his insults against Mexican immigrants by warning, "We have some bad hombres here, and we're going to get them out." Clinton responded with images of deportation forces going school to school but quickly pivoted from discussing meaningful legal immigration reform to attacking Trump on his relationship to Vladimir Putin. Meanwhile, most voters were left in the dark about what is really going on with respect to immigration.

Americans are right to want secure borders in a dangerous world. But America's borders have never been more secure than they are now. We spend more protecting our southern border -- more than $16 billion a year -- than we do on all federal criminal law enforcement by the Drug Enforcement Administration, FBI, Secret Service, U.S. Marshals Service and Bureau of Alcohol, Tobacco, Firearms and Explosives combined. What's more, the money and additional agents have paid off. Illegal immigration is at its lowest point in four decades. There are now more Mexicans leaving the United States than coming here, legally and illegally. But you won't hear that from Trump -- and even Clinton seems loath to mention the fact.

Trump said during the debate that he would fix the legal immigration system: "We're going to speed up the process bigly, because it's very inefficient." He's right about the inefficiency of the current system, in which applicants from Mexico, the Philippines, China and India must often wait decades.

But his idea of fixing the broken legal immigration system is to propose that we go back to laws enacted in the early 20th century that were driven by ethnic prejudice to favor northern Europeans like Trump's German grandfather and Scottish mother. Those laws, the first in our nation's history to restrict immigration, made it more difficult for Italians, Jews, Slavs and other southern and eastern European emigrants to come to America. Trump's version would put limits on all immigrants, calling for a return to "historical norms." He won't say how many that would mean, but you can bet it would entail drastic reductions, which would be a big problem for an aging American population. To keep our Social Security and Medicare systems viable, we need an expanding workforce and a growing population, yet without a continuing flow of immigrants, our labor force would decline and our population would shrink.

But Clinton's immigration policy is hardly ideal, either. She has spent more time talking about what she would do to give legal status to the 11 million immigrants here illegally than she has about how she would fashion a better immigration system going forward to prevent the same problem from occurring again.

Until we change our immigration laws to reflect our need for skilled workers at both ends of the spectrum -- more engineers, scientists and mathematicians at the high end and more agricultural workers, meat processors and laborers at the low end -- people will continue to come illegally or overstay their visas. But the unions that support Clinton don't want a viable guest-worker program and will insist on prevailing wage rules that make hiring foreign workers economically unattractive even when there are shortages of people willing to do certain jobs.

We need a real debate on immigration, but don't expect one in the remaining days of this presidential election. When all the ugliness and posturing is done, the country will still have to face this issue. The American economy is helped, not hurt, by immigrants, but we need a system that brings in immigrants with the right skills. And whoever occupies the Oval Office in January will have to work to fix our immigration system, not just lob insults, invoke fear or use the issue to try to win votes.

Stakes Are High for Both Candidates

The stakes couldn't be higher for both presidential candidates Sunday when they meet for their second debate. Hillary Clinton is up in national polls and in most battleground states after Donald Trump's disastrous meltdown in their first debate, but voters are still less than enthusiastic about her. However, the bigger challenge is Trump's: He has to come across as knowledgeable, temperate and empathetic, qualities he has yet to demonstrate in more than a year of campaigning. And the town hall format is likely to highlight weaknesses for both candidates.

Trump feeds off big, adoring crowds, but put him in a room half-filled with skeptics and he's likely to get testy. Trump's style is never to try to woo people who might disagree with him. He's always preaching to the choir. If you already think China and Mexico are stealing your job and ripping you off, Trump will magnify your anger and resentment with his booming voice. If Mexicans and Muslims make you nervous, Trump will promise to deport many of the former and make sure fewer of both groups gain entry. But if you're looking for real policy solutions to big problems, Trump can only mouth bombastic sound bites. He'd build a wall and make Mexico pay for it. He'd slap a 45 percent tax on Chinese goods. He'd engage in "extreme vetting" of foreign visitors. Don't ask him how he would accomplish any of this; he hasn't gotten past the applause lines.

Clinton's problem is the flip side of Trump's. She can give you a 10-point analysis of any issue and come up with a detailed solution, which usually involves more government spending paid by higher taxes on the rich. But Clinton also has a big problem appealing to one voting bloc she needs to do better among if she is to win -- namely, whites. Clinton trails Trump among whites, by an average of 13 points in an analysis by FiveThirtyEight, though she does much better among those whites with a college degree. Trump spends a lot of time insulting nonwhites, whose votes he most likely would not win even if he adopted a different tune. But his electoral strategy doesn't depend on winning Latino, black or Asian votes. Clinton, on the other hand, can't seem to resist painting whites as bigots, even if they don't know it. In the first debate, she answered a question about police shootings of black men by saying, "I think implicit bias is a problem for everyone, not just police." Lines like that rankle many of the very voters she needs.

Beyond the substance of the debate, the setting isn't likely to flatter either candidate, but it may be especially challenging for Clinton. Each candidate will sit on a tall stool while the other is speaking, but how do you pick a stool height that suits both a 6-foot-3-inch man and a 5-foot-5-inch woman? And if Trump invades Clinton's space, as Al Gore infamously did in the 2000 town hall debate, he'll look like a bully. If Clinton stumbles, she'll feed into conspiracy theories about her health.

But the biggest challenge for both candidates will be the audience. Will Trump face questions from an immigrant who came to the U.S. illegally as a child but has done everything right while here, graduating from high school and maybe even college -- someone who might face deportation if Trump were to be elected? Will Clinton face a voter who can't square the fact that a U.S. ambassador and three others died at the hands of terrorists in Benghazi, Libya, with Clinton's early assertions that an anti-Islam video sparked the violence? Will members of the audience dare to demand Trump's tax records or tell Clinton they don't fully trust her? And how will the audience react if Trump makes good on his promise to bring up Bill Clinton's infidelities in this debate?

Debates rarely win or lose elections. But in this volatile year, when most voters share at least some unease about the candidates they must choose from, a bad debate performance might just tip the balance. If Clinton stumbles, literally or figuratively, she'll lose some of her recent momentum. And if Trump does as poorly in this format as he did in the first, don't bet he'll even show up for the third debate.

The Balkanization Administration

If there’s one thing that this country needs more of, it’s racial division.  That, at least, seems to be the view of the Obama administration.

As Mike Gonzalez of the Heritage Foundation writes in this Issue Brief posted recently:

On the first day of Congress’s recess, the Obama Administration recommended the most sweeping changes to the nation’s official racial and ethnic categories in decades.  The two most significant proposals were creating a new ethno/racial group for people who originate from the Middle East and North Africa (MENA) and taking from those who identify as Hispanic the option to identify their race. The Office of Management and Budget (OMB) Notice asked for comments to be submitted within a month — the shortest window possible — for what it described as a “limited revision” of data collection practices.  Far from limited, the proposals would have long-term consequences for how one-fifth of all Americans are defined demographically and would create more societal conflict over racial preferences and political gerrymandering. The American people deserve more than a month to debate such significant changes, and Congress must weigh in.

Mr. Gonzalez concludes:

The OMB states that America’s increasing ethnic diversity requires more and more group classifications. An equally practical, and much preferred, policy response would work to smooth out these differences by promoting assimilation, which was the policy approach taken for the first two centuries of the Republic. That approach succeeded in achieving what was thought by many to be impossible: It created a cohesive American population out of many and vastly different peoples.

I should add that the administration has also recently announced that it is pushing ahead with its proposal to encourage the creation of a Native Hawaiian “Indian tribe,” despite Congress’s longstanding refusal to endorse this additional balkanization of our country. 

All this in addition to its usual support of racial and ethnic preferences of all kinds, its aggressive use of the “disparate impact” approach to civil-rights enforcement, and its encouragement of racial grievance hustlers in our inner cities.

I remain optimistic about America continuing its remarkable progress toward the realization of its E Pluribus Unum ideal, but increasingly that optimism is possible only if one takes the long view and ignores what’s going on during this administration. 

But wait:  There’s more –  The Obama administration released last week its report on “Advancing Diversity in Law Enforcement.” As you would expect, there is a lot in it on how important and desirable it is to have a politically correct racial and ethnic mix in police departments and how you should try your best to attain that mix, and lots and lots about how you must never ever do anything that is “disparate treatment” for, or has a “disparate impact” on, a group that is “underrepresented.” 

But there is not one word in the report that reminds those in charge of the recruitment, hiring, and retention of law-enforcement officials that it is not just “underrepresented” groups that are protected from racial and ethnic discrimination, but all groups — even, say, Irish Americans who happen to be white. Indeed, footnote 119 leaves the door open to such politically correct discrimination. 

So the end result is that the federal government is encouraging recruitment, hiring, and retention with an eye on skin color and national origin. This is a rather odd thing, one might think, for the Justice Department’s Civil Rights Division and the administration’s Equal Employment Opportunity Commission — the two agencies releasing the report, which have the duty of protecting all Americans from job discrimination — to do. Odd, but somehow not surprising. 

P.S.  Also last week, the White House likewise released this presidential memorandum for “Promoting Diversity and Inclusion in the National Security Workforce.”

One last item – A couple of months ago, the chief of staff of the Equal Protection Agency sent an email to all the agency’s employees that begins and ends as follows:

Dear Colleagues:

A professional, productive, and inclusive workplace is essential to our mission of protecting human health and the environment.  Today EPA is taking a crucial step forward and playing a leadership role for the federal government in equal employment opportunity and diversity and inclusion by piloting the collection of voluntary, self-disclosed sexual orientation and gender identity (SOGI) workforce data.  When collected, safely stored, and analyzed along with other demographic information, SOGI data serve as an important resource for developing workforce engagement strategies and improving organizational performance.

It concludes:

Thank you in advance for supporting this ground-breaking pilot.

Matt Fritz
Chief of Staff

I guess the Obama administration figures that the more boxes that we have to put ourselves into for the federal government, the better off we’ll all be.

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!

A Stain on Our Politics

I would rather be writing about Bob Dylan's surprising Nobel Prize in literature this week, a well-deserved acknowledgment of his contribution to modern culture. But that would entail ignoring the elephant in the room: the refusal of many in the Republican Party to admit they have nominated a man so unfit to be president he may well take the party down with him when he loses Nov. 8. I have been a proud Republican for more than three decades -- but today I am ashamed of my party and its leadership.

Donald Trump's words are so despicable that many of them can't be printed or uttered verbatim on national media. His actions are worse. He treats women like horseflesh he owns by virtue of his power and wealth. He feels entitled to walk into the dressing room of young women, even young girls in the Miss Teen USA contest, when they are undressing for one of "his" beauty pageants and brags about it on "The Howard Stern Show." He gropes perfect strangers on airplanes, in hallways. He thrusts his tongue down the throat of a People magazine reporter while his pregnant wife, Melania, is upstairs at Mar-a-Lago, calls a reporter from The Philadelphia Inquirer a c--- and a b---- when she writes an article he doesn't like. And when he is confronted, he denies everything and insults the accusers. "Look at her. I don't think so," he says, as if he wouldn't deign to assault anyone he rates less than a perfect "10" in the system he uses to judge women's worth by their beauty.

Do I believe the accusers? Yes, I do. They have nothing to gain and everything to lose by coming forward so publicly. They may support Hillary Clinton -- can you blame them? -- but would they take on a man who is known for his intimidating lawsuits if this information were false? Their lives will be upended by their revelations. Trump claims that they are all lying and that he will release the evidence at the "appropriate time." Yeah, right after he releases his tax returns.

Republicans who continue to defend Trump always fall back on the defense that the Clintons have done worse. I have written thousands of words about Bill Clinton's disgusting behavior and called on him to resign the presidency when the Monica Lewinsky story broke. But Bill Clinton is not running for president. I've criticized Hillary Clinton for her conflicts of interest with the Clinton Foundation while she was secretary of state, and I've suggested she and her family abandon all ties to the foundation if she's elected. I've criticized her private email servers and her mishandling of classified information. I haven't blamed her personally for the deaths in Benghazi, any more than I would blame President Ronald Reagan, for whom I worked at the time, for the deaths of 241 Americans in the Beirut bombings in 1983. Terrorists were responsible for those deaths, not Secretary Clinton or President Reagan.

But creating some moral equivalency between Donald Trump's behavior and Hillary Clinton's shows just how corrupted our politics have become. Partisanship should not blind us to words of unspeakable crudeness or acts of sexual aggression and assault. Conservatives have been at the forefront of warning that when we define deviancy down, we make acceptable what should be unacceptable, thus undermining morality. We know this in our hearts. We must stop making excuses on behalf of a man who has demonstrated from the very moment he descended the escalator at Trump Tower to announce his candidacy on June 16, 2015, to today that he is unfit by every measure to lead this great nation.

This election and that portion of the electorate that supports Donald Trump shakes my faith in the future of conservatism and the Republican Party. I pray my party and my country can recover from this stain on our politics.

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.