Constitution Day | Center for Equal Opportunity

Last week I spoke at the Cato Institute’s celebration of Constitution Day (September 17) about the Supreme Court’s recent decision in Shelby County v. Holder. The Center for Equal Opportunity had played an important role in this case, in which the Supreme Court struck down the coverage formula for Section 5 of the Voting Rights Act. We had urged the Court to take the case, urged it to strike down Section 5 — and, indeed, we had testified before Congress in 2006 that the law should not be reauthorized in the first place. We pointed out that, in addition to the federalism problems it raises, the principal use to which Section 5 has been put in recent years is as a tool for the Justice Department to coerce state and local jurisdictions into drawing racially gerrymandered and segregated voting districts — an odd thing for a civil-rights statute.

You can watch my Cato remarks here (first panel; my principal presentation is at 26:25–40:00, and I respond to other panelists and audience questions at 56:40–1:00:15, 1:13:40–1:17:55, and 1:19:50–1:20:48).

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Also in keeping with Constitution Day last week, four members of the U.S. Commission on Civil Rights — Abigail Thernstrom (a board member of CEO), Peter Kirsanow, Todd Gaziano, and Gail Heriot — sent a letter to President Obama, urging him not to implement by executive order provisions of the Native Hawaiian Government Reorganization bill. That bill has never been enacted, and the letter argues that such executive action would be unwise as policy and unconstitutional to boot.
They’re quite right: This bill is simply an attempt to circumvent the ban on racial preferences by declaring — falsely — that Native Hawaiians are an Indian tribe rather than an ethnic group (as the Supreme Court has ruled).

The Center for Opportunity, which has long been active in opposing this legislation, has posted the letter here, and there is an article about it in the Washington Times here.

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Speaking of the Obama administration, recently the Justice Department’s civil rights division has attacked Louisiana’s school-voucher plan as inconsistent with decades-old school desegregation orders. The division’s theory is that students who would otherwise be helping improve the “racial balance” of public schools are now going elsewhere in order to get a decent education. Imagine that!

Even the Washington Post is condemning the Justice Department’s attack. A lead Post editorial called the attack “appalling,” and concludes: “Louisiana parents are clamoring for the choice afforded by this program; the state is insisting on accountability; poor students are benefiting. The federal government should get out of the way.”

It is indeed appalling that the Justice Department is trying to use old school-desegregation orders to block Louisiana’s school-voucher program. But, as I wrote more than a decade ago, the underlying problem is often that school districts — for short-sighted political reasons — have been too complacent in leaving these old orders in place, and so they must bear some of the blame. CEO has repeatedly sent letters to the federal judges who have these cases and urged them to resolve them, one way or the other.

Look at it this way: If a school district is desegregated, then the Supreme Court has made clear that these court orders ought not to be left in place, since they are unnecessary to prevent true discrimination and can only create mischief. And if a school district is not desegregated — nearly six decades after Brown v. Board of Education — then, well, why isn’t it? There are still a couple of hundred of these court orders out there, and school districts — and federal judges, on their own, just as a matter of case management — ought to be proactive in removing the ones that are no longer necessary, and in fulfilling the ones that have not yet been fulfilled.

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Last week I sent around my review of Randall Kennedy’s dubious new book, For Discrimination: Race, Affirmative Action, and the Law. Professor Gerald Early also reviewed it (in the Washington Post), but I’ve noted that there are a couple of jarring sentences in that review:

Re “Moreover, even if the common conservative belief that blacks are inherently dysfunctional is true, how would that fact make them immune to being wronged or damaged? Here, the conservatives seem simply to be retreading ‘the prostitute cannot be raped’ argument as a defense for the hatred that affirmative action is meant to defang.”: The second sentence is obscure, but it’s hard for me to understand these two sentences as saying anything except: “Conservatives are racist.” The rest of the review is not crazy, but these two sentences are really beyond the pale. I wonder if the Post’s editors would have allowed a similar slur against liberals, like, say, “Liberals are hate-America traitors.” Sheesh.

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What do the U.S. Securities and Exchange Commission, the cities of St. Louis, San Antonio, Wilkes-Barre, Pennsylvania and Augusta, Georgia, the American Association of Law Schools, and a couple of Kentucky banks all have in common? All have been contacted in the last month or two by the Center for Equal Opportunity about the illegal use of racial preferences, that’s what.

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