Felons and Federalists, Pelosi and Preferences | Center for Equal Opportunity

Last month the Washington Post published my response to an op-ed written by one of its columnists, Michael Gerson, on felon voting. Here’s what I wrote:

“If you’re not willing to follow the law yourself, then you should not have a role in making the law for everyone else, which is what you do, directly or indirectly, when you vote. Mr. Gerson implied that Florida’s law was racially motivated, but a federal court of appeals ruled [[11-1] in 2005 that it was not.

“We have certain minimum, objective standards of responsibility and commitment to our laws that we require before entrusting someone with a role in the solemn enterprise of self-government. Children, noncitizens and the mentally incapacitated don’t meet those standards — and neither do those who commit serious crimes against their fellow citizens.

“Yes, the right to vote should be restored when the felon has served his or her full sentence and shows he or she has turned over a new leaf by going some period of time without committing a new crime. It should not be restored automatically on release from prison on the assumption that a new leaf has been turned over, because, unfortunately, most of those released from prison will be returning.

“Automatic reenfranchisement misses the opportunity to discourage recidivism by incentivizing good behavior.”

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I also want to mention that at the Federalist Society’s annual convention, its Civil Rights Practice Group — of whose executive committee I’m a member — sponsored an excellent panel discussing the lawsuit that has been brought against Harvard for admissions discrimination against Asian Americans.

The panel included the Althea Nagai, who is a research fellow at the Center for Equal Opportunity and who has authored two papers for us this year discussing the case (which were featured in an amicus brief that we filed and helped write in the case this summer).

You can watch the panel discussion here.

And here’s the Federalist Society’s description of the panel:

“In 2014, Students for Fair Admissions (SFFA) sued Harvard University, alleging that Harvard was violating Title VI of the Civil Rights Act by, among other things, discriminating against Asian Americans in the admissions process. In its recent motion for summary judgment, SFFA presented statistical evidence that Harvard discriminates both in subjective scoring and selection for admission to limit the number of Asian Americans that attend the college. Harvard’s filing denies all of these claims, stating that the statistical model put forth by SFFA is deeply flawed. They argue that the model ignores essential factors, such as personal essays and teacher recommendations, and omits large sections of the applicant pool, such as recruited athletes and legacy applicants. Harvard explains in their rebuttal that once all relevant information is included, there is no evidence of discrimination. The trial began on October 15th in Boston’s Federal District Court. Harvard officials, as well as past and present students, have testified in support of Harvard.

“This panel will examine the implications of the case, which many believe is destined for the Supreme Court. The resulting decision will set the precedent for college admission processes nationwide and could transform the nation’s higher education landscape.”

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There will be a couple of unfortunate results with the change in control of the U.S. House of Representatives. One is that, because of their investigatory and “oversight” authority, the House committees will make life more difficult for administration agencies that challenge racial preferences and that are skeptical of the “disparate impact” approach to civil-rights enforcement.

The other unfortunate result is, of course, that more bad legislation will get introduced in the House and, in some instances, will actually pass there (whether it passes the Senate and, then, is signed into law by the president fortunately remains a different matter).

I had immediately predicted that one such bill would be one reinstating the “preclearance” provisions of Section 5 of the Voting Rights Act, which the Supreme Court had effectively struck down a few years ago in its Shelby County v. Holder decision. Sure enough, it’s part of the recently announced “H.R. 1” that Nancy Pelosi wrote about in a Washington Post op-ed.

Here’s a short critique I wrote of an earlier version of such legislation:

“No new legislation is needed. The Supreme Court struck down only one provision in the Voting Rights Act — which was indeed unconstitutional, unfair, and outdated, and which was never a permanent part of the Act anyway — and there are plenty of other voting-rights laws available to ensure that the right to vote is not violated. For example, Section 3 of the Voting Rights Act is available to require preclearance in jurisdictions shown to have a recent history of discrimination.

“And, in general, why shouldn’t plaintiffs have to prove that discrimination has occurred before a defendant is treated as guilty? This is the way that every other civil rights law works, after all.

“What’s more, the principal bill that has been drafted is bad legislation. For example, it does not protect all races equally from discrimination; it contains much that has nothing to do with the Supreme Court’s decision; and it itself violates the Constitution by prohibiting practices that are not actually racially discriminatory but only have racially disproportionate effects. The bill is also hopelessly partisan; at Senate hearings, it was clear that no Republican there would favor it, because it is designed to give a partisan advantage to the Left.”

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Finally, and as has been the case for decades, the Center for Equal Opportunity is warning state and local governments against using racial, ethnic, and gender preferences in their contracting programs. Here’s the most recent example.

November 2018 addendum to earlier memorandum, reprinted below:

Based on a recent local news story, we would suggest making it clear upfront to those in charge of the disparity study that the City is not interested in any recommendations that involve preferential treatment on the basis of race, ethnicity, or sex.

Thank you again,

Roger Clegg
Center for Equal Opportunity

May 23, 2016

To: City Council
Asheville, North Carolina

From: Roger Clegg
Center for Equal Opportunity

Re: Proposed “disparity study”

A recent news story indicates that the City Council is interested in received input regarding, among other things, a proposed “disparity study”:

We are writing in case this disparity study would be addressing whether the City should adopt the use of preferential treatment on the basis of race, ethnicity, or sex in its municipal contracting. We are writing in particular to urge respectfully that the City be race-, ethnicity-, and gender-neutral in all its contracting programs.

We know that frequently disparity studies are used to try to justify legally something that in our opinion the City should not want to do — that is, engage in discrimination — but such studies no longer offer that legal justification. What’s more, disparity studies are frequently revealed to be defective, and even fraudulent. This has happened quite recently, by the way. See, e.g., http://www.cleveland.com/cityhall/index.ssf/2013/02/cleveland_minority_contractor_groups_bla.html. It is also worth noting that frequently these programs end up discriminating not only against nonminorities but also against members of some racial and ethnic minority groups. See, e.g., http://www.nationalreview.com/corner/353489/good-guys-win-one-milwaukee-roger-clegg

To elaborate: The City can undertake race-, ethnicity-, and gender-neutral measures to ensure that its bidding processes are fair and open, with or without a disparity study. It can, that is, 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.

A disparity study is needed, supposedly, if the City wants to have a legal justification for non-neutral measures, like “targets” and “goals” and so forth. But the City should not want to engage in such preferential treatment on the basis of race, ethnicity, and sex, even if it had a legal justification for it, since such discrimination is unfair and divisive; it breeds corruption; and it costs the taxpayers and businesses money to award a contract to someone other than the lowest bidder. Furthermore, it is very doubtful that, in 2016, a disparity study would justify preferential policies, since there will always be nonpreferential ways to remedy any disparities in treatment that are found.

The attached document [a redacted version of a memorandum we sent to another, nearby mid-Atlantic city that was considering this issue] contains additional discussion of, especially, the relevant legal points. Since that memorandum was prepared, another case (from North Carolina, as it turns out) has been decided that is also dubious about such discrimination. See H.B. Rowe v. Tippett, 625 F.3d 233 (4th Cir. 2010), and Judge Terrence Boyle’s (Eastern District of North Carolina) subsequent order of January 17, 2011. See also this model brief we have helped prepare and post for those wishing to challenge preferential contracting programs: https://pacificlegal.org/plf-and-ceo-model-brief-on-racial-contracting-preferences/ .

Thank you very much for your attention to our concerns.

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