Happy New Year from the Center for Equal Opportunity!

Happy New Year! Over the holidays, the Center for Equal Opportunity joined and helped write this amicus brief, challenging the constitutionality of Section 5 of the Voting Rights Act, in a case that will be argued before the Supreme Court next month. As we explain in the brief, not only is Section 5 outdated and an affront to federalism principles, its principal use now is as a tool to require racially gerrymandered and segregated voting districts — turning the ideals of the civil-rights movement on their head.

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The Washington Post had a story recently about how Black Entertainment Television founder Robert L. Johnson is urging President Obama to encourage U.S. corporations “to voluntarily embrace a plan to interview at least two qualified minority candidates for every job at the vice president level or above.” This, says Johnson, is designed to address the black–white employment gap (he would modestly call this the “RLJ Rule,” and would also ask companies to follow a similar procedure for awarding vendor contracts).
Johnson first made this proposal at a White House meeting last year, and President Obama said he liked the idea, but Johnson says the effort “fizzled out.” Perhaps the reason it fizzled out is that it is clearly illegal.

In response to Johnson’s remarks, a White House spokesman said in a statement that the president is committed to ensuring that “everyone has a fair shot, a fair shake and plays by the same set of rules,” which would seem to rule out Johnson’s proposal. After all, 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 also makes it illegal for an employer to “classify his . . . applicants for employment” in a way that doesn’t provide equal treatment on the basis of race.

It might be objected that there’s no harm here, since it’s only requiring additional interviews. But suppose the shoe were on the other foot, and the company’s requirement was that at least two white candidates always be interviewed. Would the Obama administration let that fly?
And there will be harm. Suppose that, for a given job opening, a company normally narrows the field to four candidates and then interviews them. If it keeps this practice, then if you’re white candidate No. 3 or 4, you’re out of luck, because now you have to make way for the minority interviewees. Suppose the company decides to interview a fifth and sixth candidate instead. Well, the minority applicants who were the tenth and eleventh choices now leapfrog over white candidates six, seven, eight, and nine — all out of luck because they are the wrong color. And, of course, if a minority candidate is hired, then one of the white finalists — the one who would have gotten the job otherwise — is out of luck, too. (All this is true also of the National Football League’s Rooney Rule, on which this is modeled — and which is also illegal.)

Note, by the way, that Johnson — and the Post article — are sloppy in equating “minority” with “black”; the employment gaps are different for different groups, which is going to create problems in deciding which groups ought to get the preferential treatment and how much. And of course this proposal will do little to address any gaps for anyone below the vice-presidential level.

Finally, there may be some Beltway incest here: Tuesday’s Post story is written by reporter Michael A. Fletcher; Johnson’s renewed call for his plan was inspired, the article says, by his reading a Washington Post article over the weekend about the racial unemployment gap (focusing especially on “fresh research [that] has led scholars to conclude that African Americans also suffer in the labor market from having weaker social networks than other groups”); that article was also written by Fletcher.

Here, by the way, is the comment that I wrote regarding Fletcher’s earlier article:

No one would deny that discrimination still exists, but this article really doesn’t make the case for its assertion (in at least two places) that it is the principal reason for higher black unemployment. For example, the article acknowledges only obliquely that there are different education levels among different groups; even if within each level there is discrimination, there will still be an additional problem since African Americans generally have lower levels of education and that makes it harder to find work. And there are lots of other variables that need to be controlled for — some of which are mentioned by the article (for example, blacks tending to have jobs that were harder hit by the recession), but some not (African Americans with college diplomas nonetheless having lower grades or less attractive majors, and disparities in criminal-record rates, all of which also makes it harder to find work). Finally, to the extent that discrimination is a problem — and, again, there’s no denying that it is to some degree — the way to address it is by enforcing the laws against it, not by layering politically correct discrimination (a.k.a. affirmative action) on top of politically incorrect discrimination.

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The Chronicle of Higher Education last week has a story, the title of which asks, “Asian-American Students Wonder: Is the Bar Higher for Us?” The teaser to the article then elaborates: “College officials deny it, but many Asian-American high-school students feel they will be held to a higher standard.” But college officials don’t deny that Asian Americans are held to a higher standard. They cheerfully and proudly admit that whites and Asians are held to a higher standard than African Americans, Latinos, etc. The only issue is whether there is also discrimination against Asians vis-à-vis whites or vice versa (and, probably, some Asian ethnic groups vis-à-vis other Asian ethnic groups). It’s still all racial/ethnic discrimination, however, and here’s hoping that the Supreme Court puts a stop to it, as the Center for Equal Opportunity is urging.

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Speaking of which, an interesting new study was discussed in Inside Higher Ed last week. It has to do with trends in the racial makeup of universities over time; intriguingly, the article says the study found that, in states that have banned racial preferences in university admissions, “the result of the bans was not to exclude black students from higher education but to redistribute their enrollment — and to do so in ways that more closely reflected enrollment patterns in those states.”

Yet another reason to get rid of such preferences, of course. And I would the point that “de facto segregation” is really an oxymoron: If racial imbalances are not the result of deliberate sorting by some higher authority of individuals by skin color — but are, instead, the result of individual choices, geography, etc. — then they really are not segregation. For example, labeling an Idaho community college (located in a part of the state where there are few racial minorities) as “segregated” is not illuminating. The fact of the matter is that, in 2013, the number of segregated universities in the United States, and the number of segregated public K-12 schools, is . . . zero.

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