Category Archive

Last week President Trump created some controversy — so what else is new? — with his off-the-cuff remarks.  This time it had to do with his criticism of Rep. Rashida Tlaib (D-Mich.) and Rep. Ilhan Omar (D-Minn.) for their criticism of Israel.  “Where has the Democratic Party gone?  Where have they gone, where they’re defending these two people over the state of Israel?  And I think any Jewish people that vote for a Democrat, I think it shows either a total lack of knowledge or great disloyalty.” Now, the controversy centered on the term “disloyalty,” and whether it implied that …

Law professor Eugene Volokh asks the useful question: “When does the U.S. Constitution allow government officials to discriminate based on race?” Courts have said that “governmental racial classifications”—policies that sort people into racial categories—are presumptively impermissible, yet acceptable if the government makes a strong justification for them. “The legal rule is . . . the strict scrutiny test,” says Volokh. Accordingly, to be deemed constitutional, a race-based policy must be “narrowly tailored” to achieve a “compelling government interest.”  There is, of course, some pertinent history. Law professor Stephen A. Siegel says that by 1940 narrow tailoring had become “the oldest …

The Trump administration is to be commended for the new regulations that the Department of Housing and Urban Development is proposing for enforcement of the Fair Housing Act, aimed at changing the disparate-impact approach used in the Obama administration. This is the approach whereby a defendant can be held liable for housing discrimination when it has a policy that is nondiscriminatory on its face, is evenhandedly applied, and was adopted with no discriminatory intent — but which leads to politically incorrect statistical imbalances. So, for example, if a landlord would prefer not to rent to individuals with a history of …

The Justice’s Best Work At the top of my (short) list of “Stevens in Memory” is John Paul Stevens’s separate opinion in the Bakke case, decided in 1978. You’ll recall Allan Bakke, especially if you repair even just occasionally to this site. Bakke was the aspiring medical student who despite strong academic credentials was rejected by the Medical School at the University of California at Davis. Bakke, who is white, sued, alleging racial discrimination inasmuch as the school gave him less of an opportunity than it did minority students to compete for a seat. As I saw the case then …

It’s hard to know how to weigh in on the Biden-and-busing controversy, since the definition of “busing” is itself uncertain; since it’s hard to tell what Joe Biden means to say now, let alone what he meant to say decades ago; and since the criticism of him by his political opponents is so likely to be deceptive as well. But these thoughts: 1) It is unconstitutional and bad policy to assign students to public schools on the basis of their skin color. 2) This means that Jim Crow segregation was unconstitutional and bad policy; it also means that racial balancing …

By now you’ve probably read about the “college admissions scandal,” the dubious work of a man named William Singer, a college counselor who helped students from wealthy students get into elite schools by cheating on tests and using false athletic credentials. Now the Wall Street Journal, which broke the story, has added to it in an article reporting that Singer also “advised some families to falsely claim students were racial minorities.” Singer let families know that their applicant sons and daughters might be at a “competitive disadvantage” if they didn’t opt for misrepresentation as minorities. He wound up pleading guilty to …

The Supreme Court recently agreed to review cases presenting the questions whether sexual orientation and transgender status are “sex” within the meaning of Title VII of the 1964 Civil Rights Act — that is, whether the prohibition in federal employment law against discrimination on the basis of sex includes bans on sexual-orientation and transgender-status discrimination. The answer, of course, is no:  When Congress wrote in 1964 that employers may not discriminate on the basis of sex, they meant — those words meant — that employers could not treat men and women differently, and nobody would have thought that the word …

In a splendid report of good news, the Education Department’s Office for Civil Right has reached an agreement to resolve a complaint filed against Texas Tech University Health Sciences Center (TTUHSC), which is part of the large state university in Lubbock, Texas. Health Sciences has five separate schools, and the complaint (made by the Center for Equal Opportunity) concerned whether the current use of race in admissions by any of the schools is legal. They are: the School of Allied Health; the Graduate School of Biomedical Sciences; the School of Nursing; the School of Pharmacy; and the School of Medicine. …

Like most people, I have good days and bad days on my job.  Sometimes you feel like you’re getting ahead, and some days not so much. At the Center for Equal Opportunity, getting ahead means stopping the powers that be from using race-based decision-making — that is, from treating Americans differently on the basis of skin color and what country their ancestors they came from.  That means saying no to old-fashioned, politically incorrect discrimination, of course, but also to today’s more fashionable and politically correct discrimination:  affirmative action and the use of the “disparate impact” approach to civil-rights enforcement.  And …

Stopping Discrimination Assuming that the Roberts Court remains conservative for at least the next two or three years, Roberts should have chances to vote to overrule several liberal precedents, arguably the most important being Grutter v. Bollinger, the racial admissions preferences case from ages ago (2003 to be exact). Currently there are two race cases in early stages of litigation either of which might make it to the Supreme Court by 2021. One is a challenge to preferences underway at Harvard and the other a challenge to the racial admissions at the University of North Carolina. The Court may be …