In addition to the New Haven firefighters case, the U.S. Supreme Court is hearing arguments in another important case. In Northwest Austin Municipal Utility District No. 1 v. Holder, the plaintiff is challenging the constitutionality of Section 5 of the Voting Rights Act.
It’s common knowledge that some jurisdictions tried to keep blacks away from the polls. The infamous poll tax was one method. Over 40 years ago, Congress enacted a law (known as Section 5) that required states like Alabama, Georgia, Mississippi, South Carolina, and Louisiana to seek Justice Department permission to change voting procedures (pre-clearance).
In 1975, Texas was added to the list of states covered by the provision. In 2006, the act was extended for the fourth time – for 25 years. A utility district in Texas that came into existence in 1986 challenged the law. Considering the racial progress made in the last four decades, particularly the election of black officials, the pre-clearance requirement is intrusive and based on out-of-date evidence, the plaintiff contends.
The legal standard the Court has used in such cases is whether the challenged statute is “congruent and proportional” to the ends of the relevant constitutional provision, here the Fifteenth Amendment, which bans racial discrimination in voting. There are three ways in which Section 5 fails this test: (a) There is no rhyme or reason to the jurisdictions now covered (for example, the statute itself requires use of election statistics that are decades old: Texas is covered but not Arkansas, Arizona but not New Mexico, some New York City boroughs but not others, etc.); (b) it is extraordinarily intrusive in the kowtowing it requires from state and local jurisdictions to the federal government; and (c) it bans much that is not illegal under the Constitution, since the former covers anything with a racially disproportionate “effect” while the latter requires discriminatory intent (for example, the Justice Department has been urged, and the Obama administration is likely, to use Section 5 to block anti-voter-fraud measures on the theory that they “disenfranchise” a higher percentage of blacks than whites).
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[T]he justices should bear in mind that it is precisely the ideals of the Voting Rights Act and the Fifteenth Amendment that will be jeopardized if they do not strike down Section 5. This statute is not only no longer congruent and proportional to the Fifteenth Amendment: By far its principal purpose is now to violate it.
Everybody’s blogging about it. Jerry Brown, California’s Attorney General, says the state’s ban against race and sex preferences is unconstitutional. (Source)
The California Supreme Court asked Brown to comment on Coral Construction v. City Of San Francisco, a case in which two contractors challenged San Francisco’s preferential treatment ordinance. The court will decide whether the ordinance violates California’s ban on preferences.
Specifically, he contends that Proposition 209 violates the Equal Protection Clause of the Fourteenth Amendment, which declares that no state “shall…deny to any person within its jurisdiction the equal protection of the laws.” The ban against discrimination and preferential treatment ensures equal protection of the laws. So how does Brown rationalize his contention?
The U.S. Supreme Court turned the plain language of the Fourteenth Amendment on its head by finding a non-existent narrowly tailored/compelling interest doctrine among those simple, explicit words. Despite the straightforward mandate to not deny any person equal protection of laws, the Supreme Court fashioned a levels-of-scrutiny method to deciding cases. As long as a law is “narrowly tailored” to serve a “compelling” government interest, racial discrimination is permissible.
Unfortunately, the California Supreme Court likely will side with San Francisco. Last month, the same court ruled that Berkeley’s school district was not violating the law barring the state from discrimination and preferential treatment based on race by assigning students based on race, because the district didn’t show “partiality, prejudice, or preference” in assigning students by race. In other words, Berkeley discriminates against everyone, so the practice is okay.
The Pacific Legal Foundation’s Sharon Browne told the Times that it would be “incredibly strange for the California Supreme Court, 13 years after Prop. 209 was adopted, to say at this time it is unconstitutional.”
I don’t think they’d declare it unconstitutional outright. They’ll simply interpret the amendment in a way that renders it ineffectual.
Paul Mirengoff of the Power Line blog has an op-ed in the Washington Times about the Obama administration’s selection of people who will all but ensure continued racial discrimination. Thomas Perez has been nominated to head the Office of Civil Rights in the Department of Justice. Among other things, he believes in lowering standards for minority medical school applicants. See Obama Nominee Suggests Lower Quality Doctors for Minorities for more information.
Mirengoff writes:
Mr. Perez …is best-known for his efforts to develop cutting-edge theories with which to defend discrimination in favor of blacks and other minority groups.
In a 2006 article in the University of Maryland’s Journal of Health Care Law and Policy, Mr. Perez argued for the preferential treatment of minority applicants for medical school admission on the theory that minority medical school graduates are significantly more likely than their white counterparts to provide care to the poor.
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However, Mr. Perez’s analysis is not intellectually honest because it fails to acknowledge that those admitted through racial preferences also are disproportionately likely to do poorly in medical school and, thereafter, disproportionately less likely to obtain important board certifications. In other words, lowering admission standards for minority applicants reduces the number of well-qualified doctors.
Mirengoff takes the analysis a step further by offering this insight: that black doctors serve the poor disproportionately may be the result of fewer options because of lesser qualifications (and not necessarily because of an altruistic impulse). Poorer communities are therefore being served by doctors admitted to medical schools under race preferences and are, by definition, less qualified than doctors who had to compete with everyone else.
Perez believes and advocates such a practice. If confirmed, he’ll continue advocating lower standards for minority medical school applicants. Occupying a high position in the Justice Department, he’d have a powerful platform from which to spread his ideas of “medical apartheid,” as Linda Chavez correctly calls it.
In his latest column, George Will writes about the New Haven firefighters case before the U.S. Supreme Court, Ricci v. DeStefano, and quotes Chief Justice John Roberts’s question, which occurred 20 seconds into the arguments:
“Would it have been lawful if the city had decided to disregard the results of the exam to select firemen for promotion because it selected too many black and too few white candidates?”
Of course the city would not have disregarded such results.
Will summarizes the case and points out the absurdity of the city of New Haven calling what it did “race-neutral,” when the practice is racial. Ignoring the plain language of the Civil Rights Act of 1964, the city discriminated against individuals on the basis of skin color. The city claimed if it hadn’t tossed the results, black firefighters would have sued under the “disparate impact” theory.
This vicious cycle is the result of continually taking race into account. Instead of adopting a race-neutral approach to hiring and admissions, then dealing with inevitable disparities separately, the government tries to avoid disparities altogether by fixing the game. Cases like Ricci v. DeStefano are the result. Will adds:
Racial spoils systems must involve incessant mischief because they require a rhetorical fog of euphemisms and blurry categories (e.g., “race-conscious” measures that somehow do not constitute racial discrimination) to obscure stark facts…Some supporters of New Haven, perhaps recognizing intellectual bankruptcy when defending it, propose a squishy fudge: Return the case to the trial court to clarify the city’s motivation.
The vicious cycle will end only when the government stops taking race into account. Why is that so complicated?
Do you know why race preference proponents don’t like socioeconomic affirmative action? Because it doesn’t “improve diversity.” So said preference supporters last week at a debate about race- and class-based preferences.
I support class-based affirmative action for the same reason I don’t like race- and sex-based preferences. Widening the pool of lower-income candidates so they’ll have access to educational resources and financial aid is a good thing. “Widening the pool” is affirmative action. Lowering academic standards so as to admit more lower-income students is a bad thing.
Diverse Education reports on a recent debate about class-based affirmative action and race-based preferences. More here.
John McWhorter, one of the debaters, has seen first-hand what happens when schools lower standards for minorities. “If you set the bar low, that is the kind of performance you will get,” he said. “[Moreover] there is no evidence that the presence of Black and Latino students significantly improves education.” McWhorter supports class-based affirmative action.
Class-based affirmative action supporter Dalton Conley, said the so-called wealth gap between students is larger than the racial gap. Tackling the former gap would benefit more people.
Julian Bond, chair of the NAACP, gets his terms wrong, as preference proponents often do. “Affirmative action resulted from an American consensus,” he said, “a remedy for past racial injustices. Changes in our society, not least in the election of our first African-American president, do not signal a change in our racial temperature so significant that race-conscious affirmative action can now be discarded.”
Affirmative action in its truest sense was designed to widen the pool of people considered for jobs and admissions, not as a racial spoils system, which it has become.
Richard Sander has documented the mismatch effect that occurs when blacks are admitted to selective schools through race preferences. He found that law students admitted under preferences tended to receive lower grades and pass the bar exam at lower rates. Sander posits that without preferences, blacks would be better matched to their schools.
Four Duke University researchers conducted a study in which they argue more information is needed to determine if the mismatch effect exists. Specifically, they contend that mismatch could occur only if selective universities possess private post-enrollment student information, which they call a “necessary condition” to make the determination. (Source)
Rather than looking at objective factors to determine whether the mismatch exists, such as GPAs and scores, the researchers suggest “two potential avenues that may lead to a more conclusive test of mismatch,” which is what they mean by “private post-enrollment information.” The subjective approach includes asking admitted black students what they expected their GPAs to be after their first year and whether they still would have attended if the GPAs turned out to be X.
Confused yet? I think that’s precisely the idea.
Leave it to a group of academics to make something simple seem complicated. As the Center for Equal Opportunity’s (CEO) Roger Clegg notes, the researchers have in front of them evidence of the mismatch theory already. His comment on NRO’s Phi Beta Cons blog (emphasis added):
All very interesting, but doesn’t this article miss the forest for the trees? The most important point, found in the last line of the table but not commented on, is this: The first-year GPA for white and Asian students was 3.33 and 3.40, respectively; for black students it was 2.90; for Latinos was 3.13. So the ethnic groups that, in all likelihood, got preferences (look at the rest of the table) did substantially worse than the ethnic groups that did not (e.g., a half-point gap between blacks and Asians). Sounds like confirmation of “the controversial ‘mismatch’ theory” to me. (This is not news, of course: The Shape of the River acknowledged that African Americans at selective schools on average had a class rank in the 23rd percentile, versus the 53rd percentile for whites; the Center for Equal Opportunity’s studies over the years have found similar gaps.)
Such lopsided GPAs (not to mention test scores) is evidence of mismatch, isn’t it? Why is it necessary to send letters to students asking them to speculate on first year grades? The mismatch isn’t subjective; it’s an effect that either exists or doesn’t exist. If students admitted under preferences have substantially lower grades than students not admitted under the policy, there is a mismatch.
File this in the never-heard-about-it department: In 1996, the City of Austin in Texas passed a race and sex preferences ordinance that required minority-owned businesses seeking government contracts and subcontracts to certify themselves as minority-owned businesses.
John Goode, owner of Mr. Bones BBQ refused, preferring to win contracts based on the same criteria as other contractors. (Source)
A company called Fine Host Corporation canceled its contract with Goode, citing “lack of proof” of his minority certification. In 1998, Goode filed suit against the City of Austin for wrongful and unfair dismissal. A federal judge recently dismissed his suit.
It’s hard to believe such a thing could happen, but it does. A black man wants to compete with others and refuses special treatment, and he’s penalized for it. The government has a way of coercing citizens.
The state of California requires minority business owners with government contracts to certify themselves as such. Like Goode, Ward Connerly, a minority business owner, refused.
On my personal blog, I wrote about Connerly’s campaign to end race preferences in government hiring, contracting, and admissions. A few commenters called him a hypocrite, accusing him of trying to dismantle a system from which he benefited. The accusation was false, and I was very pleased that Connerly e-mailed a response to the accusations, which I posted on my blog. He wrote (emphasis added):
It seems that one of those who posted to your site is fascinated by the issue of whether I registered my firm as a “minority” contractor. To set the record straight, I have NEVER registered or certified my firm as a “minority contractor” with the federal government, the state government or any city or county agency. My firm has NEVER received any preference as a “minority contractor.” The contract reported on by the S.F. Chronicle is one that my firm already had when the law went into effect requiring all contractors to award 15% of their contracts to minority-owned subcontractors. I refused to certify as required by the new law. To settle the matter, the California Energy Commission – the procurement agency – asked if I would sign a form stating that I was “black” and that I owned at least 50.1% of my firm. If I agreed to do so, I would not have to subcontract 15% of the contract, which would have made its implementation financially infeasible, the CEC would be in compliance with the law, and an expensive lawsuit could be avoided. Because I am regarded as “black” and did (do) own at least 50.1% of my firm, I signed the form confirming those facts. That ended the matter. No “certification” or registration ever occurred.
We can ask, “What kind of country are we living in?” all day long, but the solution is action. On this blog, I hope to raise awareness about the unfair and demeaning nature of preferential treatment and provide news and other information about the American Civil Rights Institution’s efforts to dismantle this practice.
Race, race, race. Will there ever come a time when we won’t talk about it anymore? Or not as often? Call me jaded, but it’s not likely. We cover race on this blog, because we’re opposed to preferential treatment based on race. It can’t be avoided in this context, so off we go!
Ideally, applications and other government forms would not include racial/ethnic self-identification boxes. They exist more or less for bean counting purposes. The Chronicle of Higher Education reports on a study presented recently at the annual American Educational Research Association conference about racial categories. After analyzing the self-identifying racial categorization of over 22,000 undergrad students at 49 colleges, the researchers found that the three approaches in which they (researchers) classified the students produced different results and skewed the findings. The approaches are:
Classifying subjects of two or more racial groups as biracial or multiracial;
Classifying subjects belonging to the least prevalent group as members of that group (black-white biracial students classified as black, for instance);
Classifying subjects according to race and background, such as “white-black” or “white-hispanic.”
The researchers found each approach produced different results. For instance, when they classified students who identified as white and American Indian as American Indian, they “drastically overestimated the percentage” of American Indians receiving merit-based financial aid. From the Chronicle:
How researchers classify a biracial population, says the paper summarizing the authors’ findings, “can have profound implications” for both the descriptions of students that arise from those researchers’ work and the conclusions that result from their analyses. “Unfortunately,” it says, “there is no single solution to this empirical dilemma. Indeed, each approach has its strengths and its limitations.”
So, what’s the rationale for classifying students racially at all? It’s necessary for racial preference purposes, for one thing. The article concludes:
“Unfortunately,” it says, “there is no single solution to this empirical dilemma. Indeed, each approach has its strengths and its limitations.”
By, for example, classifying all students who identify with two or more groups as being simply “biracial” or “multiracial,” researchers avoid erroneously lumping student together with single-race peers but run the risk of glossing over significant differences between biracial populations.
Although they do not recommend a way around the problem, the authors suggest that it may be worthwhile to conduct studies determining how biracial or multiracial students would themselves prefer to be classified. “After all,” they say, “the constituency affected most significantly by the various classification schemes, one could argue, should have a stake in how they are ultimately treated.”
How many racial category choices are there now? With increasing racial and ethnic diversity in the United States, there’s no end to such categories. And given that racial categorization was once used to oppress and even to kill, I believe the government should not be involved in collecting such information anyway. Except to pat itself on the back for having a “critical mass” of brown faces on campus and employed in government agencies, what’s the point?
No, we can’t get away from race. We may criticize ghosts of the past for using it to divide us, but what the government is doing today is hardly different.
The Chronicle of Higher Education reports that parents and groups of Asian descent are upset over the University of California’s (UC) admissions changes. As you may know, these students tend to score higher on standardized tests and achieve higher grades than whites, blacks, Hispanics, and other groups.
Earlier this year, the Board of Regents voted to eliminate two SAT subject test requirements and will consider for admission applicants with a 3.0 or higher who’ve completed at least 11 of 15 required college prep courses by their junior year and taken the ACT with Writing or SAT Reasoning exam.
It’s been widely reported that UC’s admissions changes will negatively impact Asian students. The purpose of the changes is to admit more minorities, but Asian students are not considered preferred minorities. Author Stephan Thernstrom noted that Asians are 12 percent of California’s population but accounted for 37 percent of UC admissions last year. An excerpt from the Chronicle:
The Legislature’s Asian and Pacific Islander caucus sent the board a letter urging it to postpone voting on the policy change. The letter complained that the policy “has not received the proper vetting it deserves,” partly because the university had made no effort to run it by Asian-American lawmakers, civil-rights groups, and higher-education associations. It also said the university’s analysis of the policy’s impact on Asian-Americans and Pacific Islanders had failed to break out the data for specific ethnic groups, masking the potential impact on those that are disproportionately from disadvantaged backgrounds.
The board overwhelmingly approved the policy anyway. The university’s administration dismissed its own projections by saying that its analysis was based on outdated data that failed to account for the likelihood that Asian-Americans would adjust their behavior by, for example, putting more effort into the basic SAT test, which remains part of the admissions criteria.
When the changes were first proposed, an analysis estimated that the share of Asian students would drop from 36 percent to between 29 and 32 percent. What accounted for this projection? In order to admit more black, white, and Hispanic students, the share of high-achieving Asians inevitably would drop. But I’m speculating here.
While Americans of Asian descent typically don’t protest and complain the way other minority groups do, I have a feeling they’ll continue venting their displeasure at any admissions scheme that unfairly reduces their numbers, as well they should.
It’s hard to believe a college administration would open itself to ridicule by shutting down a controversial race preference bake sale over a price discrepancy. But it’s true. Watch, and laugh:
I think so-called affirmative action bake sales, where students of Asian descent typically are charged the most for baked goods and black students charged the least, illustrate the point very well. When schools lower standards to admit a certain percentage of black and Hispanic students, it’s just as offensive (or should be) as setting bake sale prices based on race and sex.
The views and opinions expressed on this blog do not necessarily reflect those of the American Civil Rights Institute. This blog is written and maintained by La Shawn Barber. E-mail her at lashawnbarber@gmail.com
In addition to the New Haven firefighters case, the U.S. Supreme Court is hearing arguments in another important case. In Northwest Austin Municipal Utility District No. 1 v. Holder, the plaintiff is challenging the constitutionality of Section 5 of the Voting Rights Act. 
Everybody’s blogging about it. Jerry Brown, California’s Attorney General, says the state’s ban against race and sex preferences is unconstitutional. (
Mirengoff takes the analysis a step further by offering this insight: that black doctors serve the poor disproportionately may be the result of fewer options because of lesser qualifications (and not necessarily because of an altruistic impulse). Poorer communities are therefore being served by doctors admitted to medical schools under race preferences and are, by definition, less qualified than doctors who had to compete with everyone else.
John McWhorter, one of the debaters, has seen first-hand what happens when schools lower standards for minorities. “If you set the bar low, that is the kind of performance you will get,” he said. “[Moreover] there is no evidence that the presence of Black and Latino students significantly improves education.” McWhorter supports class-based affirmative action.
File this in the never-heard-about-it department: In 1996, the City of Austin in Texas passed a race and sex preferences ordinance that required minority-owned businesses seeking government contracts and subcontracts to certify themselves as minority-owned businesses.
The 
