The Huffington Post last week had an article headlined, “Ocasio-Cortez Slams the ‘Racial Injustice’ of the Cannabis Business As White Men Profit,” reporting that the “New York congresswoman suggests ‘affirmative-action licensing’ to mitigate the ‘racial wealth gap’ in areas that paid the price of the war on drugs.” She’s offended by the fact that too many white men are making money on legalized pot, and suggests that maybe licenses should be distributed so as to favor nonwhites, to make up for the fact that so many of them were arrested in the past for dealing drugs illegally.
I’m not happy about anyone getting rich in pot trafficking, legal or illegal, but let’s think through Representative Ocasio-Cortez’s proposal.
Is this a good argument?: Simply because you happen to have the same skin color as those who were convicted of selling pot when it was illegal, therefore you should be favored now that selling pot is legal. That can’t be right.
Well, then, is this a good argument?: Simply because you have the same skin color as the people who live in neighborhoods where people were commonly arrested for selling pot illegally, that’s why you should be favored now that selling pot is legal. No, that can’t be right either.
Well, then how about this?: Because you yourself were arrested for selling pot illegally, therefore you should be favored for a license now that pot is being sold legally. Well, that still seems like a non sequitur to me, but notice that it now says nothing about race. So, if you find this argument persuasive, then all convicted pot traffickers should be eligible for favored treatment now, not just those of a particular color.
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As a legal matter, generally racial preferences can be justified only if there has been a history of discrimination in the government’s award of contracts — and of course that can’t be shown here since up to now the government has not been awarding contracts at all.
I wrote here about a similar proposal in Maryland last year for National Review Online:
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.
Again, I’m not a fan of legalizing the sale of pot but, even if you are, it makes no policy or legal sense to inject racial favoritism into this wonderful new industry.
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Virginia governor Ralph Northam’s interview — There are two take-aways from his interview recently with the Washington Post: (1) Rather than take all the responsibility myself, I want to be able to blame (other white) people besides me for whatever it turns out that I did; and (2) I’ll give the Left, especially the civil-rights Left, whatever it wants (reparations, contract set-asides, etc.) if they’ll ease up on calling for my resignation.
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Harvard’s Racial Discrimination — The final trial arguments were held last week in the case challenging Harvard’s undergraduate admission policy as illegally discriminatory against Asian American applicants. I’ll be appearing this week on a panel discussing the case at Rice University, my undergraduate alma mater.
This is also a good time to mention again the amicus brief filed in the case against Harvard by the Center for Equal Opportunity and two of our allies. That brief discussed two studies documenting evidence of Harvard’s discrimination, written by CEO research fellow Althea Nagai.
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Some more thoughts on the case: There is overwhelming evidence that Harvard uses racial preferences against Asian Americans, as the CEO studies and much other evidence show. And it should be borne in mind that, whether or not Harvard discriminates against Asian Americans vis-à-vis whites, it is essentially undisputed that “overrepresented” groups (e.g., Asian Americans and whites) are discriminated against vis-à-vis “underrepresented” groups (e.g., African Americans and Latinos). Therefore, Harvard’s use of racial preferences must pass “strict scrutiny” to be lawful.
That means, in turn, that Harvard must show that there are “compelling” educational benefits in using racial preferences against Asian Americans to limit their numbers and achieve greater student-body “diversity.” Each institution that uses racial preferences must make this showing; it cannot simply cite the Supreme Court’s 2003 decision in Grutter v. Bollinger, since the educational benefits of “diversity” will be different in, say, a graduate physics program than at a law school. In addition to producing evidence of those educational benefits, Harvard must also explain how those benefits are so compelling that they outweigh the obvious costs of discriminating against Asian Americans in this particular context (see list of these kinds of costs here). If the trial court finds that the discrimination is against Asian Americans vis-à-vis whites as well as vis-à-vis other nonwhite groups, it would be even harder to meet this first prong of strict scrutiny, because there will actually be less racial diversity in the student body as a result of the discrimination.
Finally, Harvard must show that using racial preferences against Asian Americans is “narrowly tailored” to achieving those compelling educational benefits. A key element of narrow tailoring is the consideration of race-neutral alternatives. Once again, Harvard’s own internal research (uncovered during the trial) indicates that this test is failed. And given the wide variety of racial and ethnic backgrounds in its applicants, Harvard could and should consider the perspectives and experiences of individual applicants without using race as a proxy for those perspectives and experiences. Here again, if the court finds that the discrimination is against Asian Americans vis-à-vis whites as well as vis-à-vis “underrepresented” nonwhite groups, strict scrutiny is even more difficult to pass.
Look at it this way: Harvard has been using racial preferences for at least 40 years: Justice Powell’s 1978 opinion in the Bakke case discusses them. Yet rather than phasing them out, as the Court in Grutter expected it would do, the principal change Harvard has made over the past 40 years is to dramatically ramp up their use against Asian Americans.
