It’s hard to know how to weigh in on the Biden-and-busing controversy, since the definition of “busing” is itself uncertain; since it’s hard to tell what Joe Biden means to say now, let alone what he meant to say decades ago; and since the criticism of him by his political opponents is so likely to be deceptive as well. But these thoughts:
1) It is unconstitutional and bad policy to assign students to public schools on the basis of their skin color.
2) This means that Jim Crow segregation was unconstitutional and bad policy; it also means that racial balancing of schools (which I have no doubt is now supported to one degree or another by all the Democratic presidential candidates, including both Joe Biden and Kamala Harris) is unconstitutional and bad policy.
3) Some federal judges, federal bureaucrats, and civil-rights groups thought that a good way to end Jim Crow segregation was by affirmatively assigning students to schools on the basis of skin color. In some circumstances — where this was simply a way of ensuring that students went to the schools they should have been going to all along had there been no Jim Crow — this might have made sense, but often it was, to understate the matter considerably, controversial. Some of the criticism might have been rooted in a defense of Jim Crow, but often it was not, because the liberal definition of “segregation” included not only the de jure but also the de facto variety, and because using racial discrimination to end racial discrimination is always problematic.
4) The federal-state and voluntary-mandatory distinctions that are often important in other contexts don’t really have much salience here. That is, it can’t (as a matter of constitutional law or sound public policy) be left to the states to decide whether to engage in racial discrimination; likewise, if a state decides to engage in such discrimination, it’s misleading to call it “voluntary,” since while the state is not being forced to adopt the policy, the resulting discrimination is not voluntary for the students who are then assigned to schools on the basis of their skin color. And this is true, again, whether we’re talking about old-fashioned Jim Crow segregation, or the new and politically correct discrimination undertaken to achieve “diversity.”
***
Recruiting a Lawsuit? — In the most recent issue of the Washington Post‘s “Top Workplaces” magazine, kudos are given to Power Home Remodeling Group for its “diversity” uber alles efforts: “To help boost the number of women, Power added an extra $1,000 referral bonus for new female recruits — giving employees $3,000 rather than $2,000 if the candidate gets hired.”
Now, Title VII of the 1964 Civil Rights Act, which bans among other things sex discrimination in private employment, says: “It shall be an unlawful employment practice for an employer . . . to . . . classify his . . . applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities . . . because of such individual’s . . . sex.” And those “regularly undertaking” to do recruiting for individuals or companies are likewise banned from “classify[ing] or refer[ing] for employment any individual on the basis of … sex.”
I’ll also note that Power is based in Pennsylvania, in which the relevant federal court of appeals has explicitly rejected the “diversity” justification for employment discrimination under Title VII (no federal court anywhere has accepted it, by the way).
And I’ll ask, would anyone — including, say, the U.S. Equal Employment Opportunity Commission — find it legally permissible for an employer to give special bonuses for the successful recruitment of white males? (By the way, Power’s policy would as reported encourage white women to be referred not only over white men but also over nonwhite men.)
***
Loony Rooney — Along the same lines, you frequently hear about how the National Football League’s “Rooney Rule” ought to be used elsewhere in hiring and promotion. The rule requires at least one minority to be interviewed when filling a vacancy.
But this is clearly illegal. Again, Title VII of the 1964 Civil Rights Act prohibits racial discrimination in private employment, and that’s what this is. The statute covers hiring and promotion, of course, and again also makes it illegal for an employer to “classify his . . . applicants for employment” in a way that denies equal treatment on the basis of race.
It might be objected that there’s no harm here, since the Rooney Rule is only requiring an additional interview. But suppose the shoe were on the other foot, and the requirement was that at least one white candidate always be interviewed. Would that fly?
And there will be harm. Suppose that a team (or a company) normally narrows the field to four candidates and then interviews them. If it keeps this rule, then if you’re white candidate number four, you’re out of luck, because now you have to make way for the minority interviewee.
Suppose the team (or the company) decides to interview a fifth candidate instead. Well, the minority applicant who was the tenth choice now leapfrogs over white candidates six, seven, eight, and nine — all out of luck because they are the wrong color. And, of course, if the minority candidate is hired, then one of the white finalists — the one who would have gotten the job otherwise — is out of luck, too.
***
Happy Fourth of July!
