Archive for June, 2009
Yesterday the U.S. Supreme Court ruled in favor of white firefighters and against the city of New Haven in Ricci v DeStefano.
The city had thrown out the results of a promotions test because no blacks scored high enough to qualify for promotions. The city claimed that had it certified the test results, it could have been sued by black firefighters under the disparate impact theory. The District Court granted summary judgment for New Haven, and the Second Circuit (on which Sonia Sotomayor sits) affirmed.
In a 5-4 decision split along party lines, the Supreme Court held that the city violated Title VII of the Civil Rights Act when it discarded the test. The decision was based on an analysis of Title VII’s provisions on disparate treatment and disparate impact. New Haven intentionally discriminated against white firefighters (disparate treatment) to avoid liability for unintentional discrimination against black firefighters (disparate impact). From the syllabus of the 93-page opinion (PDF):
Under Title VII, before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional, disparate impact, the employer must have a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory action. The Court’s analysis begins with the premise that the City’s actions would violate Title VII’s disparate-treatment prohibition absent some valid defense. All the evidence demonstrates that the City rejected the test results because the higher scoring candidates were white. Without some other justification, this express, race-based decisionmaking is prohibited. The question, therefore, is whether the purpose to avoid disparate-impact liability excuses what otherwise would be prohibited disparate-treatment discrimination.
The answer to the question in this case is no. There must be a “strong basis in evidence” to intentionally discriminate against one group to remedy past discrimination against another (which “affirmative action” purports to do). Only in narrow circumstances could intentional discrimination be justified. As long as an employment test is job-related and consistent with business necessity, or there is no equally valid, less discriminatory alternative available, it is valid.
The court rejected the city’s claim that the test wasn’t job-related and consistent with business necessity, or that there was an equally valid, less discriminatory alternative available. The evidence showed that the city had already watered down the test to make it easier for black test-takers (that’s my expression, not the court’s), painstakingly analyzing the questions to make sure they were relevant to the captain and lieutenant positions. The defendants also failed to show an equally valid, less discriminatory alternative was available. For example, the city’s suggested race-based test result adjustment would have violated Title VII.
Had New Haven certified the results and faced a disparate impact lawsuit, the court notes, the city could have avoided liability by showing the test was job-related and consistent with business practices.
This decision no doubt will result in more disparate treatment lawsuits if an employer tosses out a test for fear of disparate impact lawsuits, as the dissenting Justice Ruth Bader Ginsburg notes. Race makes things complicated, doesn’t it?
The simplest and most objective way to provide jobs and award promotions is to assess candidates on their qualifications and objective scores, regardless of skin color. If it means “disparate impact” for minorities, so be it.
I’ll have more to say once I read the entire opinion. Stay tuned.
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In April, Bucknell University deans shut down a racial preferences bake sale that a conservative student group hosted to illustrate the unfair and demeaning nature of lowered admissions standards based on race. The school cited a discrepancy between prices at the time of application and at the time of sale. A technicality.
After almost three months, the issue’s still hot. The story recently was covered by the Associated Press, Wall Street Journal, and the Philadelphia Inquirer. From the Inquirer:
The “affirmative-action bake sale”…was shut down by the administration in April. But it didn’t end there…Bucknell president Brian C. Mitchell has received about 100 letters, e-mails, and phone calls protesting the administration’s response.
The controversy at Bucknell – a 3,500-student liberal arts university in Lewisburg, Pa., about 75 minutes north of the state capital – is not unique.
College campuses across the country frequently must deal with delicate issues of free speech, political posturing, and race relations.
Affirmative-action bake sales, usually held by conservative groups, have been cropping up on campuses for years, much to the chagrin of many administrators – although Kutztown University a few years ago let one go on and used it as a “teachable moment.”
The Foundation for Individual Rights in Education (FIRE) became involved after the school shut down the bake sale. The organization successfully defended the free speech rights of student groups who held similar demonstrations at the College of William and Mary, Northeastern Illinois University, DePaul University, the University of California at Irvine, and the University of Colorado at Boulder. FIRE is on fire. Keep up the good work.
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The Center for Equal Opportunity (CEO) published a 20-page study (PDF) titled, “Racial, Ethnic and Gender Preferences in Admissions to the U.S. Military Academy and the U.S. Naval Academy.” Among other things, the authors found that both service academies lower standards for black admittees, and the academic qualifications gap between blacks and whites is “substantial.”
The gap between Army admittees is smaller than the Navy’s gap, and the one between whites and Hispanics is smaller. The study concludes that Hispanics don’t benefit from preferences in the Army’s admissions, and there’s no evidence that Asians receive preferences at either academy.
“In fact, there is evidence that the Asian applicants with the same academic qualifications find it somewhat more difficult to obtain admission than do their white counterparts at both academies.”
According to the report, the tougher the school’s standards, the more it uses race preferences. No surprises there.
In a section titled, “Computing the Odds of Admission,” the study shows that the odds of black-to-white admissions is 4.44 to 1, Hispanic-to-white odds 3.32 to 1, and Asian-to-white odds .67 to 1.2.
“[W]e find preferences in favor of blacks at both academies, preferences in favor of Hispanics at Navy but not at Army, and preferences against Asians at both academies. We find that the odds ratios for blacks and Hispanics relative to whites are significantly greater at the U.S. Naval Academy than at the U.S. Military Academy.”
The implications of admitting students with much lower qualifications are far-reaching. As the study notes, these students will have a more difficult time academically and graduate at lower rates.
Whites and Asians with superior credentials are rejected in favor of less qualified blacks.
“At the Naval Academy, 131 Asian rejectees (41 percent) and 2,640 white rejectees (42 percent) have both math and verbal SATs equal to or higher than the black admittee math and verbal SAT medians. There are 69 Asians (50 percent) and 1,232 whites (25 percent) rejected by the U.S. Naval Academy who attained a class rank equal or better to the rank of the black admittee median.”
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The city of Milwaukee, Wisconsin, will spend $350,000 figuring out how to award government contracts based on race and sex.
According to the Milwaukee Journal Sentinel, there’s a disparity in government contract awards between minority-owned businesses and the rest. And as we’ve been told thousands of times, disparities equal racism.
The city had utilized racial-neutral contracting, but a 2007 study found that it “underuses” minority-owned businesses in government contracting. “The city-sponsored study could provide a legal basis to fend off challenges if it confirms disparities and the city returns to a race-conscious program.”
The city assumes black-owned businesses should represent a certain percentage of government contracts. Former mayor Marvin Pratt said, “Hopefully, we can show statistically that we can have a race-based ordinance.”
But Mr. Pratt, why must the city color-code contracts? Perhaps streamlining the process would benefit black-owned businesses and help them compete without resorting to race-based decisions.
Is there a race-neutral way to help black-owned businesses? Streamlining and simplifying the contracting process probably would help such businesses. But the changes also would benefit the other businesses…unless they’re limited only to so-called minority-owned businesses, and that’s discriminatory. Whether you’re for or against “affirmative action,” doesn’t this reek of unfairness?
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Quota advocates are hoping the economic downturn stimulates more than just federal funding. They’re hoping to increase set-aside contracts.
The Federal Highway Administration recently approved the California Department of Transportation’s (Caltrans) racial quota plan. The reason? What else…money. The state’s so-called Disadvantaged Business Enterprise program saw a drop in minority business participation related to the economy. Caltrans convinced the feds it needed to set racial quotas to reverse the decline in light of new stimulus funding headed to the state.
Apparently the idea sounds good enough to Minneapolis. Set to receive about $4 million in federal stimulus money, Minneapolis is ready to divvy up the racial spoils. Director of economic policy and development Cathy Polasky said, “I think we always go above and beyond what the federal mandate is, so we will be looking to encourage both local hiring and using the workforce agreements we’ve used in the past to encourage hiring of women and minorities,” she said. (Source)
For the uninitiated, “workforce agreements” is a euphemism for racial quotas.
James Frisco, president of the National Association of Minority Contractors’ local chapter, hopes the government sets aside a quarter of the energy-related contracts for minority-owned businesses.
Awarding contracts to the lowest bidder would seem to eliminate the risk of racial or sex discrimination, but some minority contractors insist on blaming racism for losing out. Unfortunately, this way of thinking is generationally entrenched. With the federal government tacitly agreeing with such attitudes, it will continue for generations more.
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The Pacific Legal Foundation’s Sharon Browne talked about the Voting Rights case presently before the U.S Supreme Court on a Federalist Society podcast.
Background: Decades ago, certain 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 approval 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.
Browne explains why the court should strike down Section 5. You may download the MP3 or listen online at this page.
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Asian groups have complained that the University of California’s (UC) recent admissions changes will negatively impact students of Asian descent. These students account for 40 percent of all undergraduates at Los Angeles, 43 percent at Berkeley, 50 percent at San Diego, and 54 percent at Irvine. Americans of Asian descent account for about 12 percent of California’s population and four percent of the U.S. population.
The American Civil Rights Institute’s Ward Connerly wrote a piece for the Sacramento Bee about this issue. He recounts a conversation he had with a UC administrator:
“I asked him why he considered it important to tinker with admissions instead of just letting the chips fall where they may. In an unguarded moment, he told me that unless the university took steps to ‘guide’ admissions decisions, UC would be dominated by Asians. When I asked, ‘What would be wrong with that?’ I got an answer that speaks volumes about the underlying philosophy at many universities with regard to Asian enrollment.
“The UC administrator told me that Asians are ‘too dull – they study, study, study.’ He then said, ‘If you ever say I said this, I will have to deny it.’ I won’t betray the individual’s anonymity because to do so would put him in a world of trouble. Yet, it is time to confront the not-so-subtle hand of discrimination against Asians that masquerades as ‘building diversity’ at many campuses.”
As Connerly notes, the effort to attract more black students to a campus isn’t a bad thing per se; it becomes so when schools discriminate against other racial groups to achieve this goal. Since California voters barred their government from preferring or discriminating against individuals or groups in hiring, contracting, and admissions based on factors like race, Asian admissions to the UC system have risen.
Consequently, UC eliminated its policy to automatically admit the top 12.5 percent of all students based on statewide performance and reduced reliance on grades and scores. Since Asian students tend to score higher on standardized tests and achieve higher grades than whites, blacks, Hispanics, and other groups, the new policy likely would reduce their numbers.
UC didn’t count on Asian groups protesting the new policy, but the “proposed UC admissions policies are so egregious and so dramatically discriminatory against Asians that these groups could not remain silent – and have credibility within their communities – as the grass-roots opposition from within specific Asians groups began to surface,” Connerly writes.
Americans of Asian descent are not a typical grievance group. Will UC’s discriminatory polices change that?
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In March, California’s First District Court of Appeal ruled that Berkeley Unified School District’s student assignment plan, which takes race into account, does not violate California’s ban on racial preferences. The court concluded that Berkeley’s assignment plan “does not show partiality, prejudice, or preference to any student on the basis of that student’s race. All students in a given residential area are treated equally—regardless of the student’s individual race or other personal characteristics.”
Plaintiffs appealed the decision to the California Supreme Court, which unanimously rejected it last week. (Source) As it stands, Berkeley is free to continue taking race into account when assigning students, although state law prohibits the government from taking race into account.
It doesn’t make sense to us, either.
For more information, see California Court Says Assignment by Race OK.
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In April, we blogged about the California Department of Transportation’s (Caltrans) new hiring plan that takes race into account in public contracting. The Federal Highway Administration approved the race-based plan on diversity grounds. Yesterday, the Pacific Legal Foundation (PLE) filed suit against Caltrans on behalf of a contractor.
The agency set aside 6.75 percent of federal contracts for women, blacks, people of Asian-Pacific descent, and American Indians. The American Civil Rights Institute’s Ward Connerly told the Sacramento Bee that the agency is “caving in to minority politics.”
State law bars the government from discriminating against or granting preferences to individuals or groups in hiring, contracting, and admissions based on factors like race and sex, but an exception exists if federal dollars are at stake and if actual discrimination is taking place. PLE’s Sharon Browne said, “We believe there is no evidence that Caltrans will lose federal dollars if they treat all contractors equally.”
Browne said Caltrans’s practice of “coding contractors by color” is “flat-out unconstitutional.” Three years ago, PLE sent Caltrans a letter demanding it stop discriminating against contractors based on race. The agency desisted but found a way around the law, using an exception in the law to claim federal funds would be lost if the agency stopped discriminating against contractors based on race.
It doesn’t make sense to us, either.
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The indispensable Shelby Steele calls Barack Obama on his contradictory “post-racial” rhetoric and his penchant to play identity politics. He once called Obama’s post-racialism delusional. “Barack Obama seduced whites with a vision of their racial innocence precisely to coerce them into acting out of a racial motivation,” Steele wrote. Chilling, but true.
In his latest piece for the Opinion Journal, Steele says the nomination of someone like “wise Latina” Sonia Sotomayor was to be expected. Republicans have tried and failed to woo Hispanics, and Democrats understand all too well that they mustn’t take the Hispanic vote for granted. With Sotomayor, Obama scores a “first” and appeases an important racial block of voters.
And that’s precisely the problem.
“The Sotomayor nomination commits the cardinal sin of identity politics,” Steele writes. “It seeks to elevate people more for the political currency of their gender and ethnicity than for their individual merit. (Here, too, is the ugly faithlessness in minority merit that always underlies such maneuverings.) Mr. Obama is promising one thing and practicing another, using his interracial background to suggest an America delivered from racial corruption even as he practices a crude form of racial patronage. From America’s first black president, and a man promising the ‘new,’ we get a Supreme Court nomination that is both unoriginal and hackneyed.”
I, too, have witnessed the contradiction. At one point I described Obama’s speech at the 2004 Democratic Convention as conservative-like, as he seemed to transcend race. But mostly everything he’s done or said so far has been racially tinged. Can we chalk it up to human nature?
Steele calls Obama’s post-racialism a mere impression, “a chimera that grows out of a very specific racial manipulation that I have called ‘bargaining.’ Here the minority makes a bargain with white society: I will not ‘guilt’ you with America’s centuries of racism if you will not hold my minority status against me. Whites love this bargain because it allows them to feel above America’s racist past and, therefore, immune to charges of racism.”
I’ve written on my personal blog that white liberals who thought they were looking beyond race when they voted for Obama actually were voting for him for that precise reason. As Steele notes, Obama “cannot win white support without bargaining and he cannot maintain minority support without playing the very identity politics that injure him with whites.”
Is Catch-22 the best way to describe Obama’s dilemma?
Steele offers an astute distinction between Obama and hustlers like Jesse Jackson. The latter resorts to guilt-tripping whites into giving him what he wants, while the former “grants them innocence” before seeking what he wants. Obama has to appease minorities by playing identity politics on the one hand, and appease whites by pretending to be post-racial on the other. This quote sums up the essence of racial preferences, which in practice is nothing more than lowered standards:
Judge Sotomayor is the archetypal challenger. Challengers see the moral authority that comes from their group’s historic grievance as an entitlement to immediate parity with whites — whether or not their group has actually earned this parity through development. If their group is not yet competitive with whites, the moral authority that comes from their grievance should be allowed to compensate for what they lack in development. This creates a terrible corruption in which the group’s historic grievance is allowed to count as individual merit. And so a perverse incentive is created: Weakness and victimization are rewarded over development. Better to be a troublemaker than to pursue excellence.
Before I end up excerpted the entire insightful piece, read it for yourselves.
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