Freedom Line Blog

On the heels of last week’s indefensible Supreme Court ruling upholding racial discrimination in university admissions (with Justice Kennedy bizarrely reversing his recent position on the other side of the question), there’s good news to report.  In a new Gallup poll, a surprising and overwhelming 70% to 26% majority of Americans believe that applicants should be admitted solely on merit.  Notably, that majority opposed consideration of race “even when it is explained that this could help increase diversity,” as Gallup emphasized:

Overwhelming Majority Opposes Racial Consideration

Although this lopsided disapproval won’t reverse last week’s Supreme Court error, it does suggest that a broad and rare consensus exists to systematically dismantle such discriminatory practices across federal, state and local levels.

Below is one of the latest cartoons from two-time Pulitzer Prize-winner Michael Ramirez.

View more of Michael Ramirez’s cartoons on CFIF’s website here.

Tim’s column on the Michigan affirmative action case is not just right on target, but superb.

I particularly like this section:

So [according to those who filed suit to force Michigan to continue racial-preference policies], non-discrimination is discriminatory?

And states across the nation must suddenly reinstate racial preferences?

Such a result is untenable judicially, logically or linguistically, and the Supreme Court has accepted the opportunity to restore reason to the matter.  Curt Levey, counsel of record in the 2003 cases challenging Michigan’s race-based admissions policies, captured the issue well:  “The Fourteenth Amendment, lest we lose sight of the forest for the trees, does not require what it barely permits.”

Or, as stated by Chief Justice John Roberts in a 2007 affirmative action case, “The way to end discrimination on the basis of race is to stop discriminating on the basis of race.”

That is exactly what Michigan voters overwhelmingly attempted to do.  It is now the Supreme Court’s task to affirm that the Constitution’s Equal Protection Clause actually means what it says.

Another excellent, concise summary of the issues at stake comes in the line from Hans von Spakovsky’s blog post for the Heritage Foundation: “The Sixth Circuit’s decision cannot be justified under the law because it turns the Equal Protection Doctrine on its head, holding that when a state bans unequal treatment under the law it somehow violates the concept of equal protection under the law.”

This isn’t just some abstruse legal argument — and it has practical applications beyond just those students who will be directly affected by the decision. As I’ve found in many years of battling against the vestiges of racism by whites against blacks, no single public policy is more likely to give white racists reason to self-justify their noxious attitudes than is a regime of racial preferences. If take away “affirmative action” — which, for both moral and legal reasons, we should indeed take away — we won’t, of course, cure racists of their racism, but we will further isolate them, further shame them, and further take away their willingness to openly state or act on their racism, because they will no longer be able to cite “affirmative action” as an excuse for them to feel unfairly treated just for being white. Moreover, I’ve found that it’s amazing how many people will actually change their ill behavior if they no longer think they can justify it in what they consider to be polite company.

Racial preferences sometimes stigmatize the recipients, often (as per U.S. Civil Rights Commission Gail Heriot) harm their own interests, and greatly exacerbate racial tensions. For all those reasons, as well as for the excellent reasons put forth by Tim, the time has come for such preferences to end.

Charles C. Johnson of the Daily Caller unearthed a scathing review of U.S. Senate candidate Elizabeth Warren’s book that was published before Harvard Law School hired her in 1995:

In 1991, Rutgers Professor Phillip Schuchman reviewed Warren’s co-authored 1989 book “As We Forgive Our Debtors: Bankruptcy and Consumer Credit in America” in the pages of the Rutgers Law Review, a publication Warren once edited. Schuchman found “serious errors” which result in “grossly mistaken functions and comparisons.

Warren and her co-authors had drawn improper conclusions from “even their flawed findings,” and “made their raw data unavailable” to check, he wrote. “In my opinion, the authors have engaged in repeated instances of scientific misconduct.”

The work “contains so much exaggeration, so many questionable ploys, and so many incorrect statements that it would be well to check the accuracy of their raw data, as old as it is,” Schuchman added.

Further reporting by Johnson indicates the reason for HLS’ willful oversight – an affirmative action policy that placed a premium on hiring female and minority faculty members.

For months now Warren’s Senate candidacy has been plagued by her use of alleged Cherokee ancestry to get academic jobs she might otherwise have failed to get.

Just last week, Warren told the Democratic National Convention, “We celebrate success.  We just don’t want the game to be rigged.”

At least not after she’s won.

As has been chronicled at length here at CFIF, one of the hallmarks of Eric Holder’s Justice Department has been its insistence on injecting race into the public square as often as possible. And one of the areas where this has played out in department policy has been in the DOJ’s repeated threats to crack down on police and fire forces for what it claims are racially discriminatory employment practices.

In 2009, for example, the New Haven, Connecticut, Fire Department threw out the results of a standardized test aimed at measuring candidates’ suitability for promotion when the number of African-American candidates who passed was deemed insufficiently high. The department was motivated in part by fear of a Justice Department lawsuit — a fear that proved to be well-founded when the DOJ filed suit against the state of New Jersey the following year because white test-takers had a higher passage rate (89 percent) than black (73 percent) or Hispanic (77 percent) candidates in an exam for police promotions.

Neither of these cases featured allegations that the tests or the promotion processes were inherently racist. Rather, they simply rested on the DOJ’s notion that unequal outcomes are inherently unjust; that the fact of disparate results was sufficient, in and of itself, to reveal systemic injustice.

So far, the results of DOJ pressure have been mixed. The New Haven firefighters whose successful test results were thrown out took their case all the way to the Supreme Court, where the justices ruled in their favor, 5-4. In New Jersey, however, the DOJ’s bullying tactics won the day, with the state agreeing to revise the exam and issue back pay to minority officers (many of whom resented the feds’ “help”).

Yet that inconsistent track record isn’t keeping the department from going at it again. This time they’re taking the show to Jacksonville, Florida. Per a DOJ release from yesterday:

The Justice Department today filed a lawsuit against the city of Jacksonville, Fla., alleging that the city is engaged in a pattern or practice of employment discrimination against African-Americans in its fire and rescue department in violation of Title VII of the Civil Rights Act of 1964.  The lawsuit challenges the fire department’s use of written examinations for the promotion of firefighters to four ranks – Lieutenant, Captain, and District Chief, all in the suppression line, and Engineer…

The United States’ complaint alleges that the examinations impact African-American candidates in two ways.  First, African-American candidates for promotion to the four positions pass the examinations at significantly lower rates than white candidates.  Second, even those African-Americans who pass the examinations are rarely promoted because the fire department selects candidates for promotion in descending rank-order based primarily upon each candidate’s written examination score and African-American candidates score significantly lower than whites.

Notice that there’s nothing in there that any fair observer could characterize as bias. Rather, the complaint is, in essence, that the Jacksonville Fire Department is too objective.

As the police officers in New Jersey noted in the piece linked above, even a successful outcome for the DOJ will not have the effect of helping out minority officers, whose qualifications will now be called into question on the basis of de facto affirmative action.

If the feds really wanted to help out, they would examine the underlying causes of why the tests exhibit racial disparities in the first place. Could it be that America’s public schools — rotting as the result of the influence of teachers unions — have disproportionately failed minority communities? Could it be that the social pathologies subsidized in perpetuity by the welfare state have thwarted upward mobility in poor neighborhoods?

Answering those questions, of course, would require some real soul-searching. And it might also require giving up the notion that good intent is sufficient to make Democrats the perpetual guardians of America’s minority communities, no matter what kind of havoc their policies wreak in reality. But that’s a level of introspection we shouldn’t expect from this Administration. In Eric Holder’s DOJ, it’s easier to just file a lawsuit and assume that the other guy’s a racist.

Former Senator Daniel Patrick Moynihan (D-NY) entered the pathway of clear thinking statesmanship when he authored The Negro Family: The Case for National Action, a landmark study on the forces ripping apart the black family and with it, black society.  The study became known colloquially as The Moynihan Report, catapulting a little known LBJ aide into the serious conversations about national policy.

A similar moon shot might happen to Senator Jim Webb (D-VA) after publishing an article calling for the abolition of affirmative action programs.  Though the entire column should be read, here are words that should ring true to all Americans:

Where should we go from here? Beyond our continuing obligation to assist those African-Americans still in need, government-directed diversity programs should end.

Nondiscrimination laws should be applied equally among all citizens, including those who happen to be white. The need for inclusiveness in our society is undeniable and irreversible, both in our markets and in our communities. Our government should be in the business of enabling opportunity for all, not in picking winners. It can do so by ensuring that artificial distinctions such as race do not determine outcomes.

Memo to my fellow politicians: Drop the Procrustean policies and allow harmony to invade the public mindset. Fairness will happen, and bitterness will fade away.

Much like Moynihan’s salvo over the bow of LBJ’s ‘War on Poverty,’ Webb’s contribution to America’s race talks is unexpected.  Webb’s words also echo the color blind sentiments in Martin Luther King, Jr.’s “I Have a Dream” speech and Chief Justice John Roberts’ commonsense observation that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
If nothing else, may Eric “(America is) a nation of cowards (on race)” Holder is congratulating Senator Webb for manning up and offering his thoughts…

After a bloody Civil War that split the nation and killed 620,000, America sought to settle the divisive issue of race once and for all by amending the Constitution to explicitly guarantee “equal protection of the laws.”  Despite that straightforward text, liberals during the past four decades have fomented the Orwellian idea that race-based unequal protection under the law somehow constitutes equal protection under the law.

In a brief filed this month with the Fifth Circuit Court of Appeals in Fisher v. University of Texas, the Obama Administration has unsurprisingly opted for the latter, supporting continuation of a racist admission system instead of equal rights.  Currently, the university literally flags each applicant’s file based upon his or her race, in order to undertake what it deceptively labels a “holistic” evaluation process.  In other words, admissions officers assess candidates’ skin color in order to reach whatever racial result they sanctimoniously deem appropriate.

A closely-divided United States Supreme Court sanctioned this discriminatory procedure in one of its more curious decisions of the past decade.  In the 2003 Grutter v. Bollinger decision, the Court ruled that universities could consider race as a “plus” factor to achieve what it called a “critical mass” of racial diversity.  Preposterously, Justice Sandra Day O’Connor wrote that “we expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”  Well, that statement was made approximately 25 years after the Supreme Court condoned the same “holistic” race-based process in Regents of the University of California v. Bakke, but somehow 25 more years were necessary.  Moreover, seven years have passed since O’Connor made that statement, yet the issue remains just as divisive despite the election of an African-American President, of all things.

What has changed since that date, however, is that Justice O’Connor has been replaced by Justice Samuel Alito.  Accordingly, a majority may now exist to declare that “equal protection of the laws” means what it says, and fulfill Justice John Roberts’s wise declaration that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”