Setting the Record Straight | Center for Equal Opportunity

A never-ending project of the Center for Equal Opportunity is setting the record straight when the media get it wrong on a civil-rights issue — or, less frequently, applauding them when they get it right. Below are some examples from this year of each (the first was published in the Washington Post, the next on the following day in the Wall Street Journal, etc.).

Washington Post:
The April 7 editorial “Disparate school discipline, in black and white” wrongly urged the Education Department to leave in place an Obama administration “Dear Colleague” letter that coerces schools into imposing racial quotas when disciplining students.
Procedurally, the letter violates both the Congressional Review Act and the Administrative Procedure Act. Substantively, the Education Department lacks authority to use the “disparate impact” standard in enforcing Title VI of the 1964 Civil Rights Act because the Supreme Court has ruled it bans only “disparate treatment.” In any event, the letter’s hyperaggressive approach violates other Supreme Court and lower federal court decisions, including a ban on racial quotas in school discipline.
As a policy matter, there is overwhelming evidence that Obama-era policies culminating in the letter push schools not to discipline students who ought to be disciplined, simply to avoid politically incorrect numbers. The victims are likely to be minority students, and their teachers, whose classrooms become disrupted and dangerous.

The Government Accountability Office study the editorial relied upon finds disparities in the number of students disciplined but doesn’t control for the obvious variable: student misbehavior. It buries in a footnote the concession that it “should not be used to make conclusions about the presence or absence of unlawful discrimination.”

* * *

Wall Street Journal:

Re “Judges Can Check the Administrative State” by Peter J. Wallison (April 6, 2018): The best candidates for the kind of judicial action the Mr. Wallison calls for are the disparate-impact regulations that federal agencies have adopted, supposedly pursuant to the enforcement of Title VI of the 1964 Civil Rights Act, which bars discrimination on the basis of race, color, and national origin in federally funded programs and activities.

That’s because the Supreme Court has ruled repeatedly that this statute bans only “disparate treatment” and does not ban practices that have only a “disparate impact.” So these regulations are ultra vires and the courts should strike them down.

* * *

USA Today:

Re Charlie Crist’s op-ed, “Ex-felons in Florida need their voting rights back”:

Those who are unwilling to follow the law themselves cannot claim a right to make the law — which is what you do, directly or indirectly, when you vote — for everyone else. That right can be restored, but Florida is correct to do so only after the felon has shown he has turned over a new leaf by going some period of time without committing a new crime — not automatically on the day someone walks out of prison, because alas most of those who leave prison will be returning. (Since there a process for reenfranchisement, Mr. Crist is also wrong to say that Florida’s disenfranchisement works “permanently,” by the way.)

We don’t let people participate in the solemn enterprise of self-government unless they meet certain minimum, objective standards of responsibility and commitment to our laws. That’s why children, noncitizens, the mentally incompetent, and people who have committed serious crimes against their fellow citizens are not allowed to vote.

Mr. Crist claims that Florida’s current policy is a “holdover of Jim-Crow era policies.” But disenfranchising felons has its roots in ancient Greece and Rome, came to the American colonies from England, and was in place here long before African Americans were allowed to vote at all. As for Florida in particular, a federal court of appeals ruled 11-1 in 2005 that the law it has on the books now was not racially motivated, and ruled 10-2 that it did not violate the Voting Rights Act.

Star Tribune (Minnesota):

Kudos to Katherine Kersten for her excellent op-ed, “Undisciplined: Chaos may be coming to Minnesota classrooms, by decree” (March 16). I want to add only one point: Not only is the policy she discusses terribly unwise — it is illegal as well.

That is, it is illegal — indeed, unconstitutional — for public schools to adopt formal or informal racial quotas in the way they discipline students, by for example requiring that the discipline rate be the same for all races. And it is equally unlawful for some other public agency to pressure schools into doing so.

The Supreme Court has made clear that racial quotas are unlawful in a variety of contexts, including employment, contracting — and education. And a federal court of appeals ruled specifically two decades ago that racial quotas for school discipline are unconstitutional, in People Who Care v. Rockford Board of Education (a 1997 decision involving an Illinois school district).

Racial quotas do not advance rights: They violate them, and the courts have made that clear.

* * *

Palm Beach Post:

Re your editorial, “County can ensure women, minorities fair cut of contracts”:

How would you like it if you owned a company and lost out on a low bid because you were the wrong color or the wrong sex?

Your editorial suggests that a couple of disparity studies can justify discrimination to ensure a “fair cut” (i.e., quota) for favored groups in all the county’s contracting, but as a legal matter a study in one sector cannot justify discrimination in another sector. The editorial also wants the county to act before additional disparity studies are completed: verdict first, trial later. And it says twice that contracts are awarded only to a “favored few,” which presumably would exclude many white- and male-owned firms, too.

The fact is that, in 2018, it’s unlikely that racial preferences will be “narrowly tailored” (to quote the legal standard) no matter what a disparity study says, since there will always be better and fairer ways to counter any alleged private discrimination than through overt government discrimination.
Here’s how: It’s good to make sure contracting programs are open to all, that bidding opportunities are widely publicized beforehand, and that no one gets discriminated against because of skin color, national origin, or sex. But that means no preferences because of skin color, etc. either — whether it’s labeled a “set-aside,” a “quota,” or a “goal,” since they all end up amounting to the same thing.

Such discrimination is unfair and divisive; it breeds corruption and otherwise costs the taxpayers and businesses money to award a contract to someone other than the lowest bidder; and it’s illegal — indeed, unconstitutional — to boot.

Related posts: