Schools, Contracts, and Colorblindness | Center for Equal Opportunity

The Justice Department announced last week that it has put an end to racially discriminatory selection practices in an Alabama school district, where two high schools had black slots and nonblack slots for their homecoming queens and Valentine’s Day courts.

The Department’s press release complained that the “schools considered race” and had “race-based selection criteria.” The release proudly declares that now, thanks to the Obama administration, the school district “will end the use of race-based election and selection criteria in all student activities.” After all, the release concludes, the Department must enforce “Title IV of the Civil Rights Act of 1964, which bars public school districts, colleges and universities from discriminating against students on the basis of race [and] color . . .”

The quoted language in the preceding paragraph — culminating with a reference to the department’s duties here, not only with respect to “school districts,” but also for “colleges and universities” — clearly sets the stage for the Obama administration to support colorblind admissions in public universities when it files an amicus brief with the Supreme Court later this month in Fisher v. University of Texas. After all, the administration cannot possibly be thinking of taking flatly inconsistent positions in the two cases.

Can it?

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Speaking of schools: During the 1960s and ’70s, hundreds of school-desegregation decrees were put in place, and rightly so. But the Supreme Court has warned that these decrees are not to stay in place forever. Normally local school districts, not federal judges, are supposed to run the schools; dissolving a desegregation decree when the school system is no longer segregated will not allow schools to readopt Jim Crow policies (the Fourteenth Amendment does not expire), but it will allow districts more flexibility with regard to charter schools and other student-assignment issues.

One problem that has arisen in particular is the tension between these decades-old decrees (which spell out rigidly which students can go to which schools) and needed reforms that allow students to transfer out of failing schools (as the federal No Child Left Behind statute, for example, does). Well, this news item points out a recent instance of this problem, where a 1960s-era decree has prompted school officials in one Louisiana district to warn students that they can’t transfer out of a failing school if they are the wrong color (in this case, white).

Now is a good time for judges to review any such decrees they have on their dockets, so that school districts can make informed and commonsensical decisions before school starts up again. The Center for Equal Opportunity has periodically written to all judges who have such cases on their dockets, and urged them to see if dismissal is appropriate (and, indeed, we wrote to the court in this particular case in October 2009, and received a response indicating — incorrectly, it would seem — that the case was considered to have been closed already). We set out the reasons why such a review makes sense; you can read a sample letter here. The federal government is typically a party to these cases, by the way, and the Bush administration did a better job of moving these cases along than the Obama administration has.

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The New York Times ran an article last week with the title, “Battling Perceptions About Minority- and Woman-Owned Businesses.” It features a black female entrepreneur who complains that she is always “battling misperceptions about the capabilities” of minority-owned businesses, sensing that people are afraid that companies “certified” as minority for affirmative-action purposes are not quite up to snuff.

Well, guess what? —this is the inevitable price of any affirmative action program. If people are given preferential treatment on the basis of race, ethnicity, or sex, then other people are going to assume that they are less qualified than those who are not given preferential treatment. If we don’t like it when people make that assumption, the only solution is to stop giving preferential treatment.

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And speaking of contracts: The Obama administration announced last week that it will need another month to decide if Arab Americans will be added to the list of groups eligible for services from its Minority Business Development Administration. Alexander Kazam wrote about the issue earlier this summer, as did I. And the Center for Equal Opportunity has filed a formal comment with the Obama administration, which argues that, in 2012, it makes no sense — and is inconsistent with the Constitution — to compile an ever-longer list of racial and ethnic groups eligible for special government programs.

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