Ladies and Gentlemen of the Press | Center for Equal Opportunity

“The Clock Ticks on Racial Preferences” is the title of a fine opinion piece by James Taranto in the Wall Street Journal last Friday on the two cases challenging racial preferences now before the Supreme Court, BAMN and Fisher. The piece ends with a couple of paragraphs speculating on what Justice Kennedy will do, and I’d like to add a couple of thoughts to that discussion.

Taranto notes that Kennedy’s earlier dissent in Grutter v. Bollinger suggested at that time that his druthers were that “the door will remain at least ajar for racial preferences.” But so long as the door is left ajar, universities will drive a truck through it: That’s the clear lesson of the last several decades. The time is long overdue for the Court simply to ban preferences based on race. There may still be some cheating and some indirect weighing of race, but it will be limited to the relatively few cases that Justice Kennedy thought he was going to allow.

I would also note that Kennedy’s earlier dissent presupposed that the educational benefits of diversity were “supported by empirical evidence.” But this is no longer so (if it ever was). See, for just some examples, the briefs here and here, and the discussions here and here.

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The Washington Post had a recent op-ed on the Voting Rights Act by President Obama’s former White House counsel Gregory B. Craig. Most of it (until the last three or four paragraphs) is about the author’s laudable voter-registration efforts in 1965 Mississippi and a conversation he had back then with one of his Harvard professors. He then, finally, gets to the point of the piece, which is to assert that, because the 15th Amendment gives Congress “power to enforce this article by appropriate legislation,” therefore the Supreme Court should not strike down Section 5 of the Voting Rights Act in Shelby County v. Holder (actually, the piece suggests that the entire Voting Rights Act has been challenged, but in fact the challenge is limited to Section 5).

Now, I know the Post is liberal, but I must say that I am surprised it would print an op-ed so breathtakingly unpersuasive. It ignores the basic point made by those challenging Section 5, which is precisely that the South of 1965 is not the South of today, by whatever metric you choose to measure discrimination. And not only does the piece ignore history, it also ignores the text and meaning of the Constitution. So I wrote this for National Review Online and posted it at the end of the op-ed on the Post’s website:
Here’s why Section 5 of the Voting Rights Act is bad policy, outdated, unconstitutional, and ought to be struck down by the Supreme Court.

What’s especially ironic is that the principal use to which Section 5 is put today is forcing jurisdictions to create and maintain racially segregated and gerrymandered voting districts — which is completely at odds with the original ideals of the Civil Rights Movement. BTW, there are other laws to protect the right to vote besides Section 5.

This second link addresses in particular the issue of how much deference the Court owes Congress: Some have claimed that the 14th and 15th Amendments were intended to give Congress essentially unreviewable authority to pass legislation in this area, but there’s no textual or historical support for that claim, and those claiming this cannot really mean it.

Suppose, for example, that Congress passed legislation that said only blacks could vote (or suppose, for that matter, that it passed legislation that said only whites could vote); or that every black person could have two votes (or, for that matter, every white person could have two votes); or that African Americans could be elected to the House of Representatives when they were only 15 years old, and to the Senate when they were only 20 years old; or that states with an African-American population of at least 20 percent were allowed to have three senators rather than two; etc. No judicial review of any of that?

The 15th Amendment says that legislation passed by Congress to enforce the Amendment is to be ‘‘appropriate.’’ There is nothing in the text to suggest that Congress intended to insulate such legislation from judicial review to make sure it is indeed “appropriate.” This same language, by the way, is used in a number of other constitutional amendments.

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Not to pick too much on the Washington Post, but it also recently ran a news story with the ominous headline, “Latino students attending increasingly segregated schools in Virginia.” My comment this time:

A school is “segregated” if only people of a particular race/ethnicity(s) can go there. So the number of segregated public schools in the United States in 2013 is … zero. What we have are some schools that do not have the politically correct racial and ethnic balance that the Civil Rights Project [a liberal organization quoted in the Post article] would like, but this imbalance is driven not by bigotry or discrimination but by immigration and the fact that immigrants tend to live near one another — neither of which is sinister. Schools should forget about the bean-counting — assigning students on the basis of race or ethnicity is illegal anyhow, whether done for politically correct or incorrect reasons — and concentrate on providing all students, regardless of race or ethnicity, with good educations.

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Speaking of the press, you might enjoy these two email exchanges I’ve recently had with reporters, asking for my comments on breaking news stories. Here’s the first:

Dear Roger:

I am Cecilia Correa, journalist of the Chilean newspaper El Mercurio. I am writing a note for tomorrow about the nomination of Thomas Perez for labor secretary. Would you answer me some questions, please?

– What does this nomination mean for the Hispanic community in the United States?
– With this nomination, is President Obama sending a message for the people? What kind of message is that?
– Are the Latinos really having more representation in the government, or this is just a symbol for keeping the Hispanic community calm for the moment?

Thank you very much. If you can answer me as soon as possible it would be great.

Best regards,

Cecilia

Here’s my response:

Thank you for your inquiry, Ms. Correa. My organization believes that Americans should view themselves and each other as Americans, not as members of this or that ethnic group. So President Obama should not be playing ethnic politics in his nominations, nor should members of the Hispanic community want him to. Mr. Perez’s record raises serious problems, which ought to concern anyone, of any ethnic group: He has done a poor job running the Civil Rights Division (the latest evidence of which can be found in last week’s IG report), and he advocates policies that divide Americans by race and ethnicity.

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Here’s the other recent press inquiry I mentioned:

Good morning Mr. Clegg,

My name is John Bennett, and I am a writer for World Net Daily, a conservative news website. I was hoping for a quote from you addressing the disproportionately high percentage of minorities employed by city government in Chicago.

Through a FOIA request, World Net Daily has obtained demographic information on Chicago Transit Authority employees. Minorities are 82% of the total workforce, and blacks are 65%. The official data from the city is attached.

Therefore, a vast disparity exists between the race of employees and the demographic profile of the city itself, which is roughly 1/3 white, 1/3 Hispanic, and 1/3 black. The percentage of blacks in CTA employment is thus twice their share of the population.

It would be terrific to know your thoughts on whether city jobs like this are patronage, a sign of corruption, a sign of racial favoritism, a sign of discrimination, or something else. Also, wouldn’t these disparities be cause for alarm if the disparity was in favor of whites?

Thank you,

John T. Bennett

And here’s my response to Mr. Bennett:

Thanks for our email, John. It is certainly true that, if the shoe were on the other foot, there would be all kinds of accusations being made. But I would say then that one has to be careful in drawing conclusions from raw numbers like these, and that’s what I’m going to say here, too. Statistics like these can be evidence of discrimination, etc., but only if you control for who’s qualified for the jobs and who’s applying for them. It may not be the case that 1/3 of those applying for the jobs are from each of the three ethnic groups listed, or that those applying are all equally qualified. Whites may be less likely than other groups to be interested in these positions, for a variety of reasons; blacks may tend to be more qualified than the Hispanics who apply; and so forth. I’m not saying that this is the case, of course — just that it might be. So I would say that these numbers don’t prove that anything is amiss, but that they do merit further inquiry to ensure that the CTA is recruiting and hiring the best qualified individuals, regardless of skin color or national origin. Certainly that would be the demand if the shoe were on the other foot.

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