Are We Winning or Losing? | Center for Equal Opportunity

Like most people, I have good days and bad days on my job. Sometimes you feel like you’re getting ahead, and some days not so much.

At the Center for Equal Opportunity, getting ahead means stopping the powers that be from using race-based decision-making — that is, from treating Americans differently on the basis of skin color and what country their ancestors they came from. That means saying no to old-fashioned, politically incorrect discrimination, of course, but also to today’s more fashionable and politically correct discrimination: affirmative action and the use of the “disparate impact” approach to civil-rights enforcement. And it also means opposing the race-obsessed identity politics that are a related part of this political correctness.

And one reason it’s so easy to have good days and bad days is that it so much depends on which part of America you’re looking at when you ask if you’re winning or not. I don’t mean which racial group you’re looking at; my colleague here Terry Eastland wrote last week about how that’s one kind of division we don’t have, thank goodness. No, I mean whether you’re looking at the people, the law, the courts, the politicians, the corporations, the media, or the universities. Let’s take them in turn.

I feel pretty good when I read about the views of the American people as a whole. I wrote a few weeks ago about a recent survey that found an overwhelming majority of Americans rejecting racial preferences in university admissions, for example, and that includes majorities of all racial groups. Americans aren’t racists, and most Americans aren’t race-obsessed.

And the law itself, especially the Constitution and federal statutes, generally takes a colorblind approach. There are some statutes that allow for some race-based contracting by the federal government, and some statutes that use “disparate impact” language, but those are the exceptions. The Center for Equal Opportunity has had a lot of success over the years in using these colorblind laws. The bigger problem, as I’ll discuss next, is that bad judges sometimes deliberately misinterpret and distort these laws.

Right now, I’m feeling pretty good about the courts. Those bad decisions that I just alluded to might be revisited and, with the new appointments to the Supreme Court, we have a good chance of winning, and certainly of not making any more bad law. The president’s lower court appointments have been excellent, too, and so the judiciary generally is looking quite solid.

I have to note, however, that this was a close-run thing. On the eve of the 2016 election — which, like nearly everyone else, I thought Hillary Clinton would probably win — it looked like Justice Scalia’s replacement would have been chosen by her. If that had happened, then we would have had the worst Supreme Court on civil-rights issues by far since at least the early 1970s. And so, for the first time in my legal career — I graduated from law school in 1981 — I faced the prospect of it being essentially impossible to win a case in the Supreme Court on behalf of colorblind equal opportunity. There would have been a majority to say that politically correct racial preferences were all perfectly fine. We really dodged a bullet, folks.

Which brings us to the people who generally appoint and confirm those judges, and who pass and enforce the civil-rights laws: the politicians. They are a mixed bag at best: The Republicans are mostly timid, and the Democrats are mostly bad. Look at how the Democrat presidential candidates are trying to outdo one another in championing reparations, for example. It’s rare for there to be good legislation, at the federal or state level, no matter which party controls a legislature. Usually the best one can hope for is a president who makes good appointments to those agencies with responsibility for enforcing the civil-rights laws. And I’ll say that President Trump gets high marks in this regard.

The Left likes to vilify corporations as anti-progressive, but Corporate America is politically correct to the nth degree. “Celebrating diversity” is a ubiquitous company mantra, and it means hiring and promoting with an eye on race. This makes no sense logically, empirically, legally, or morally — as I testified here — but it increasingly a given of corporate culture.

The mainstream media, of course, take their cues from the civil-rights establishment, which is increasingly hard Left. The better reporters will at least include a dissenting view from a conservative toward the end of their (biased, distorted) story, and we are lucky to get that much. I’d consider the popular culture — movies, television, rock stars — as part of that media. Once in a while, I’ll be surprised when a film, TV show, or entertainer bucks politically correctness, but they are few and far between.

Worst of all, though — where, if you think about them much, you can get very depressed very quickly — are the universities. Faculties, students, administrators; public or private; religious or secular — it doesn’t seem to matter much. There is no idea so wacky that it won’t be embraced; worse, if you as a student or professor or even an campus guest refuse to embrace it, you risk being persecuted in the most frightening ways.

So you can see how it feels like an emotional roller coaster, this business we’re in at the Center for Equal Opportunity. America really runs the gamut.

And you can feel good or bad, too, when you start thinking about how these different facets of American society fit in with one another. On the one hand, it is true that one cannot sink into total despair so long at a majority of the people and our laws — and (for now) the courts interpreting those laws and the federal bureaucrats enforcing those laws — are all relatively sane. They are a solid backstop to where the campus crazies or corporate wimps would take us.

But, as noted, we’re never much more than one bad election away from the courts and bureaucracies changing, and somehow even when Republicans are elected the people’s impatience with political correctness doesn’t seem to get translated into political action. Worse, the media and university intelligentsia have over time an impact not only on corporations, but also on the culture generally (and thus on the people).

I’ll conclude on a positive note, by stressing that the Center for Equal Opportunity is fighting on all these fronts: We address the public in our writing and speaking and publications, use and influence the law, file briefs in court, engage with the political branches at all levels, confront corporations, talk with the media, and visit college campuses. Probably our most consistent concern is with the law and the courts, and that has been the area of greatest strength for our side.

And whether it’s a good day or a bad day, we’re never sorry we’re fighting.

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