If/then on race relations | Center for Equal Opportunity

If we really want to diminish racial disparities in crime (which leads to racial profiling),

If we really want to diminish racial disparities in education (which leads to university admission preferences),

If we really want to diminish racial disparities in all kinds of other areas (income, wealth, employment, school discipline, you name it),

If we really want to diminish all the racial disparities that, like it or not, make it hard to get rid of the remaining prejudice in this country –

Then the single most important thing we can do is lower the out-of-wedlock rate for African Americans, which is now over 72 percent.

See also this excellent column by Juan Williams.

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The New York Times had an editorial on Sunday in which it calls for Section 3 of the Voting Rights Act to be amended so that it applies not just when there has been a showing of intentional discrimination, but also whenever a jurisdiction has adopted a practice with a disproportionate racial “effect.” This approach has also been endorsed, the Times says, by the Congressional Black Caucus.

But, besides being of dubious constitutionality, an “effects” test will ensure two results, both bad. First, it will cause racially gerrymandered and segregated voting districts; we know this because that is the principal use to which the effects test in Section 5 of the Voting Rights Act has been put. Second, it will be used to challenge many perfectly legitimate antifraud measures; we know this because many on the Left hate, for example, voter-ID requirements.

When voting practices and procedures are neutral on their terms, in their intent, and in their application, they are not “discriminatory” by any reasonable definition of the word, even if they do have a disproportionate effect on this or that group. For example, a law aimed at ensuring that noncitizens are not voting may have a disproportionate effect on Latinos in some jurisdictions, but that doesn’t make the law discriminatory.

In sum, there is nothing wrong with requiring a plaintiff to prove actual discrimination under the federal civil-rights laws before he is awarded relief. No new legislation is needed.

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Last week the Justice Department entered into a settlement agreement with the Arcadia, California, school district to resolve an investigation into allegations of discrimination against a transgender student that was, the Department’s press release says, “based on the student’s sex.” The complaint that had been filed alleged that the district had prohibited the student from “accessing facilities consistent with his male gender identity, including restrooms and locker rooms at school, as well as sex-specific overnight accommodations at a school-sponsored trip,” because the student is, well, not actually male.

Whatever one thinks of this as a matter of policy, it is quite dubious as a matter of law. The relevant statutes here, as the Justice Department’s press release acknowledges, “prohibit discrimination against students based on sex.” The Justice Department’s position is that “sex” includes not only sex but also, somehow, “a student’s gender identity, transgender status, and nonconformity with gender stereotypes.”

Presumably the Justice Department has no objection (for now) to, say, separate restrooms and locker rooms for boys and girls. Rather, then, the objection the Justice Department has is to the refusal by the school district to draw a distinction between girls who identify as girls and girls who do not identify as girls (apparently on the theory that unless you believe you are a girl then you aren’t a girl, for purposes of the law). But the school district’s refusal to draw that distinction is not discrimination on the basis of “sex”; and, of course, if the legislators who passed these statutes in 1964 and 1972 had been told that this is what those statutes meant, they would have been understandably horrified.

Again, we can have a discussion about the best policy to follow for transgender students, but the U.S. Justice Department should not, by distorting a law, pretend that Congress has already resolved that discussion.

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There’s a very interesting new Gallup poll (discussed in some detail here). One part, like two other recent polls, finds that Americans, by a large margin, don’t like racial preferences in university admissions.

Nationally, 67 percent disapprove of the practice, while only 28 percent approve (disapproval runs 75–22 among whites and 59–31 among Hispanics, with African Americans supporting them by a narrow 48–44 majority).

Another part finds that, nonetheless, Americans support “affirmative action” by 58–37 percent (51–44 among whites, 76–20 among blacks, and 69–25 among Hispanics). But, as the discussion acknowledges, the apparent inconsistency here can be explained by the fact that “affirmative action” is a vague term, and the question about taking race into account in university admissions was more precise in spelling out the consequences of the practice. Note also that the affirmative-action question was asked first; I bet that, if the order had been reversed, the percentage of people supporting affirmative action would have dropped dramatically (and the percentage opposing racial preferences in university admissions would have been even higher). The third part of the survey is interesting, too, and looks at the even broader question of what role the government should play “in trying to improve the social and economic position of blacks and other minority groups” in the U.S.

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