Archive for Roger Clegg
Last month, the Department of Justice sued New Jersey and its Civil Service Commission for using an exam that “discriminates” against blacks and Hispanics, because these groups scored “statistically significantly lower” than whites.
Assistant Attorney General Thomas Perez (pictured) said, “This complaint should send a clear message to all public employers that employment practices with unlawful discriminatory impact on account of race or national origin will not be tolerated. The Justice Department will take all necessary action to ensure that such discriminatory practices are eliminated and that the victims of such practices are made whole.”
Speaking at the left-leaning American Constitution Society, Perez said his department has “dusted off the disparate impact theory. If the fact support the use of disparate impact theory, whether it’s in the housing context, the voting context, the employment context, we will use the disparate impact theory because every court that has ruled on this has said that it is permissible to do so.”
The Center for Equal Opportunity’s Roger Clegg writing at NRO’s The Corner points out that during Obama’s recent State of the Union speech, he said his administration “will once again” file suits against civil rights violation and workplace discrimination, implying that the Bush administration didn’t file such suits. If that’s the case, Obama missed a big one. In 2007, Bush’s DOJ sued the New York City Fire Department for discrimination.
Furthermore, “‘the employment discrimination’ that the Obama administration is challenging is not really discrimination at all,” Clegg writes, “it’s the use of written and physical tests that are nondiscriminatory by their terms, in their design, and in their application, but which have a politically incorrect ‘disparate impact’ on this or that racial, ethnic, or gender group.”
Disparate impact creates are a no-win situation, figuratively speaking. Racial disparities in employment tests typically result in discrimination charges, and the employer ends up watering down the test. But the disparity remains. Just short of eliminating tests altogether, which fire and police departments seem reluctant to do, the employer will face discrimination complaints. If the employer tosses test results or adjusts them based on race, he’s in violation of the law.
The solution carries such a high and convoluted burden of proof. The employer must make sure the test is job related, a business necessity, and there are no less discriminatory alternatives for selecting employers.
Filed under: Barack Obama, Judiciary, Roger Clegg | |Comments off
The University of Massachusetts will set aside 12 slots at its medical school for members of “underrepresented” groups, which include blacks, “Hispanics, certain Southeast Asians, and Cape Verdeans, Brazilians, and other Portuguese speakers.” (Source)
Wow. I guess the school could cram a couple students from each group into those lower-standard slots.
For people who don’t believe preferences and set asides equal lower standards and think I sound like a broken record, consider this: without even looking at grades, scores, and statistics, why do you think schools set aside slots for members of certain races if these students are being admitted under the same standard as everyone else? Students admitted to those 12 slots are not being assessed in the general pool of applicants. The med school has minimum criteria, of course, but the race and ethnicity of these students are given weight that others students don’t get. With the set-aside slots, no matter how small or large, students are being admitted or denied admission based on race.
According to the article, low-income and first-generation college students of any ethnic background could apply under the “Medical Scholars Program.” That makes it sound as if any poor or first-generation college students can apply, if we go by plain language. But everyone on the face of the planet has an “ethnic background.” Do they have in mind ethnic Germans and ethnic Lithuanians?
The Center for Equal Opportunity’s Roger Clegg blogs at The Corner:
“I won’t make the usual and obvious points about why discrimination on the basis of skin color and national origin is unfair, divisive, and stupid. All that aside, this seems to me to be almost certainly illegal. To be sure, this isn’t exactly like the race/ethnicity set-aside program that was struck down in Bakke, since here the slots are also (in theory at least) going to be open to applications from members of disfavored racial and ethnic groups, so long as they are low-income or the first in their families to attend college. But this is still a very mechanical use of race, like the point system struck down in Gratz v. Bollinger. And the justification given for the racially discriminatory program by UMass president Jack Wilson is the need for ‘role models’ — which has also been rejected by the Supreme Court (in Wygant v. Jackson Board of Education, in 1986).”
A commenter writes:
“In one fell swoop, they have DESTROYED the value of the years of hard work and academic merit of any minority candidate who might graduate through the color-blind open competition admissions process (this includes all minorities from any other state or country (or even worse, from this state) who are not among the ’special’ 12 minorities who are given this unique ‘reverse discrimination’ privilege). Not only have they stripped all value from the degrees of the truly accomplished minority candidates, but the existence of this affirmative-action program will spread like wildfire by word of mouth, and knowledgeable patients will intentionally avoid any contact with ALL minority graduates of UMass Medical School for fear of being treated by one of these affirmative-action ‘doctors’ who may not know what they are doing. The stigma of this program will drive all of these fully-qualified minority graduates out-of-state after they become doctors, where they will hope that few people will know of the existence of this truly disastrous program.”
Filed under: Diversity, Roger Clegg | |Comments off
In 2003, the U.S. Supreme Court held in Grutter v. Bollinger that the University of Michigan law school’s use of race in admissions was narrowly tailored to further a compelling interest in “obtaining the educational benefits that flow from” a skin deep-only diverse student body.
Justice Sandra Day O’Conner, who voted with the majority, wrote that she and her colleagues “expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”
Six years later, O’Connor says the “25 years” language shouldn’t be construed as a deadline for the end of racial preferences. (Surprise!) Social scientists need to “clearly demonstrate the educational benefits of diverse student bodies, and to better understand the links between role models in one generation and aspirations and achievements of succeeding generations.” (Source)
What if social scientists prove that so-called educational benefits flow to racial minorities, but not to racial majorities? Under this scenario, would O’Connor and company still believe racial bean counting is constitutional?
I echo Roger Clegg’s sentiment: “I am glad she is no longer on the Supreme Court. [She] “is not a social scientist by training, and the problem with her jurisprudence is that she would too often try to be a social scientist rather than a justice. She tried to make policy rather than interpret laws.”
The Center for Individual Rights’s Terry Pell (pictured) said, “I think the fact Justice O’Connor is doing this reflects the fundamental weakness of the opinion she offered: It failed to offer a principled basis for limiting — or even judging the effectiveness of — these practices.”
Unfortunately, as long as agencies and companies can be sued for “disparate impact,” racial preferences will exist. Until any and all differences between the races disappear, there will be “discrimination” accusations, allegations, and lawsuits. However, Ricci v. DeStefano sends a warning shot to employers who infringe on the rights of individuals in one group for fear of disparate impact lawsuits from another group.
Filed under: Diversity, Judiciary, Roger Clegg | |1 Comment
“Science and engineering should look like the rest of the population,” said Daryl Chubin of the American Association for the Advancement of Science (AAAS). And if the racial bean-counting doesn’t yield the desired results, “somebody needs to pull the plug and say this has not been an open and fair search.”
The Center for Equal Opportunity’s Roger Clegg, advocate for race-neutral hiring practices, writes about the AAAS’s diversity rationales on Minding the Campus. Clegg takes the AAAS to task for seeking to adopt racial quotas.
“[I]t’s clear that nondiscrimination is exactly what AAAS does not have in mind. The National Journal article says that it wants to ‘allocate additional slots to U.S. racial and ethnic minorities’ and to protect universities from ‘likely lawsuits by groups seeking color-blind admissions policies.’ As the quotes above suggest, it is demanding that schools get their numbers right. It wants quotas, it wants race and ethnicity to be weighed when hiring decisions are made.
“[I]f race or ethnicity is weighed, then racial and ethnic discrimination is taking place,” he writes. “Let’s have no nonsense about this not being so, since skin color or national origin is ‘only one factor.’ Either that factor makes a difference sometimes in who gets picked or it doesn’t. If it never makes a difference, then there’s no point in considering it. If it does make a difference on occasion, then on those occasions someone is getting or not getting the job because of skin color or national origin. That’s discrimination. Since we are dealing with scientists and not English majors, this kind of logic ought to be understandable.”
The Supreme Court in Grutter v. Bollinger contended that as long as race was one of the factors, and not THE factor, in admissions, it’s was okay. But as Clegg notes, it doesn’t make sense. Selecting students for admission based on race, whether it’s one of several factors or THE factor, is still racial discrimination.
One of the arguments the AAAS and others make to justify racial discrimination is the “role model” rationale. Racial minorities can’t succeed unless they’re taught by people who look like them.
In Black Rednecks and White Liberals, Thomas Sowell said that history has proven this idea wrong. For example, feudal Japan emerged from isolation and became an industrial nation by learning from Americans and Europeans. The country sent its students to America and Europe, and brought Americans and Europeans to Japan to teach necessary skills. In the late 19th and early 20th centuries, Jews in New York City were taught mostly by Irish Catholics, and a generation of black children in Harlem in the 1930s and 1940s were taught more often by Jewish teachers than black teachers. Yet, the Japanese, Jews, and blacks excelled despite looking into the faces of people who didn’t share their culture, religion, or skin color.
The Supreme Court has already rejected the role model argument over two decades ago in Wygant v. Jackson Board of Education. “A decade before that, in Hazelwood School District v. United States,” Clegg writes, “the Court had similarly noted that a school district could not point to the racial makeup of its student body as a justification for the racial makeup of its faculty. And rightly so. As Justice Powell wrote in Wygant, ‘Carried to its logical extreme, the idea that black students are better off with black teachers could lead to the very system the Court rejected in Brown v. Board of Education.’”
Think about it. In their misguided zeal to close the achievement gap between the races, social engineers want to regress to the days of government-mandated racial segregation. As long as it’s for a “good” cause, it’s okay?
(Photo credit: Shutterstock)
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The Center for Equal Opportunity’s Roger Clegg writes about tenure discrimination allegations against Emerson College and DePaul University at Minding the Campus.
Two blacks at Emerson and four women at DePaul claim they were refused tenure based on race and sex. “In neither case has direct evidence of discriminatory intent been alleged, such as racist or sexist comments,” writes Clegg. “Instead, statistical disparities of one sort or another are cited.”
Statistical disparities? Sounds like the makings of disparate impact claims. Clegg believes race and sex discrimination exists, but in academic settings, it typically takes form against whites, non-preferred minorities, and men.
“But no doubt there remain aberrant instances of old-fashioned discrimination against ‘underrepresented’ minorities and women. And perhaps the plaintiffs here will be able to marshal persuasive evidence that this is what happened to them.”
Clegg points out that some who say they oppose discrimination nonetheless support racial preferences, the “politically correct kind” of discrimination. When it’s against blacks, it’s obviously wrong. Discrimination against whites, on the other hand, is wrong only to those who believe race should play no part in hiring, promoting, or admitting. Pro-preference folks have argued that the use of race-based preferential treatment for hiring and promoting is justified based on the “role model” rationale. No matter how well intentioned, it doesn’t justify discrimination. Besides, says Clegg, the Supreme Court rejected the argument.
Turning the role-model rationale on its head, Clegg writes:
“[I]n Hazelwood School District v. United States, the Court had similarly noted that a school district could not point to the racial makeup of its student body as a justification for the racial makeup of its faculty. And rightly so. As Justice Powell wrote in Wygant, ‘Carried to its logical extreme, the idea that black students are better off with black teachers could lead to the very system the Court rejected in Brown v. Board of Education.’
“Likewise, are Idaho universities entitled to avoid hiring African Americans, Maine colleges Latinos, and Nebraska schools Asians—to ensure that those states’ natives are not taught by someone who may not look like they do? Should Ruth Simmons have been disqualified as president of Brown University, on the grounds that she is an unsuitable role model for all those white male students there?”
Of course, avoiding hiring preferred minorities as faculty in overwhelmingly white schools (or states) would be the wrong kind of discrimination, despite its consistency with the “role model” argument.
Consistency is the bane of PC’s existence.
Clegg reminds readers that schools should “simply hire the best professors they can. Period.” Unless the court strikes down or Congress repeals the disparate impact provision of the code, race will be relevant. Unfortunately.
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The assumptions some folks on the left make never cease to amaze. For instance, if whites leave loud, dirty, and expensive cities for quieter, cleaner, and cheaper suburbs, they’re racists. If they remove their children from mediocre government schools and send them to better government schools, they’re racists. If taxpayers in low-crime areas oppose Section 8 housing in their neighborhood, they’re racists.
Are racial minorities racist when they do the same thing?
Hartford Courant reporter Rick Green implies that Republicans are sending coded messages to “white folks like” him. The Republican Board of Education, which opposes government discrimination and preferential treatment, is targeting like-minded voters. The board’s goal is to appeal to parents of any color who oppose racial bean-counting and sending their kids to schools across town to satisfy someone’s idea of skin deep-only diversity.
Green quotes two men who support and oppose such practices. Supporter John Brittain, who led a desegregation case, said “our neighborhood schools” is code aimed directly at white people.
The Center for Equal Opportunity’s Roger Clegg commented on the post:
“Well, if children are assigned to schools on the basis of race, that IS racial discrimination (and the Supreme Court did strike down such racial balancing in the Seattle and Louisville cases). And if ‘neighborhood schools’ is a ‘code word’ for the preservation of whiteness, what phrase would be better to convey the fact that many (most) parents prefer that their kids go to nearby schools? I suspect that whatever phrase is chosen, those who want racial balancing will criticize it as code-worded racism.”
What irritates me about white liberals like Green is their assumption that all racial minorities support so-called desegregation efforts and have no problem sending their children across town. One commenter writes:
“I love it when idiots like Brittain claim real words/phrases are code words for sinister purposes…As a minority, I want my children to go to our neighborhood schools. The idea my children might be shipped across town so that white students can see what a Mexican kid looks like is disgusting to me.”
More like him, please.
The racial balancing issue has more to do with misplaced white guilt and coercion than concern for minority kids. It is my fervent wish that more minority parents speak out against such condescending practices. In the U.S., people have a right to live wherever they wish and for whatever reason. If this right results in taxpayers of a certain color flocking to districts with better schools, so be it.
The government has no business barring children from certain schools based on the color of their skin. Local lawmakers (and judges) should (re)read Brown v. Board of Education.
Filed under: General, Roger Clegg | |Comments off
I like following the Center for Equal Opportunity’s Roger Clegg around the web. A recent comment lands on a Dallas News blog post titled, “Gap Rap: The future of minority contracting.”
The blogger mentions “pressure” on investors and contractors that do business with the government to give business to black- and Hispanic-owned companies in Dallas. He believes this practice may discourage outside investors because of red tape (brown tape?) that involves jumping through race-based hoops.
An excerpt: “So here’s my question: Do minimum minority-participation requirements wind up hurting investment and dampening development in southern Dallas? Or do they serve a useful purpose?”
Instead of answering the blogger’s question, Clegg asks and answers a common sense question of his own (emphasis added):
“Why do race, ethnicity, and sex need to be considered at all in deciding who gets awarded a contract? It’s fine to make sure contracting programs are open to all, that bidding opportunities are widely publicized beforehand, and that no one gets discriminated against because of skin color, national origin, or sex. But that means no preferences because of skin color, etc. either–whether it’s labeled a ’set-aside,’ a ‘quota,’ or a ‘goal,’ since they all end up amounting to the same thing. Such discrimination is unfair and divisive; it costs the taxpayers money to award a contract to someone other than the lowest bidder; and it’s generally illegal to boot (see 42 U.S.C. section 1981 and comments we submitted to the Colorado DOT here: http://www.ceousa.org/content/view/655/86/ ).”
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Earlier this month we blogged about the Ricci v. DeStefano in the context of higher education. Some assert that Ricci applies only to standardized employment tests and won’t impact overall efforts to achieve diversity in higher education. Peter Wood of the National Scholars Association states the matter this way:
“If Ricci turns out to mean that employers can now administer skills tests for hiring and promotion with much less fear of disparate impact lawsuits, perhaps we will see some relief from the pressure on high school graduates to go to college to ‘get the credential.’ History, of course, cannot just be shoved into reverse. The cultural pattern in America of sending on to college higher and still higher percentages of high school graduates has momentum of its own, and is bolstered by the need of colleges and universities to keep the tuition flowing.”
The Center for Equal Opportunity’s (CEO) Roger Clegg, writing for the Pope Center, discusses the impact Ricci will have on academia:
“If university officials breathed a sigh of relief after the Supreme Court handed down its recent decision in Ricci v. DeStefano, the New Haven firefighters case, they made a mistake. Many seem to believe that the case won’t have any impact on their use of racial preferences in faculty decisions…A gulp would be more appropriate than a sign of relief. Ricci should and will apply to common college and university racial preference policies in hiring. Officials ignore it at their peril.”
Clegg recalls a similar case, Rudin v. Lincoln Land Community College. The school selected a candidate pool that didn’t include a black person. A black man named Paul Hudson was added. Although he ranked second from the bottom of the pool, he got the job. Janine Rudin, who ranked second from the top, sued on racial and sexual discrimination grounds. The trail court dismissed her case, but the 7th Circuit reversed and remanded. Although the case was settled, it’s an example of shifting court sentiment on disparate impact, a judicial interpretation of the Civil Rights Act.
“The Rudin and Ricci cases together show that the courts won’t take a blasé attitude toward hiring practices in higher education where some people are given advantages simply because of their race,” Clegg writes.
Read the full article here.
Filed under: Judiciary, Roger Clegg | |Comments off
Lani Guinier, who said African immigrants should not receive racial preferences because they are not descendants of black American slaves, co-wrote an article in the New York Times with Susan Sturm, a fellow liberal law professor. Guinier was Bill Clinton’s nominee for Assistant Attorney General until her pro-quota views became known.
I echo what the Center for Equal Opportunity’s Roger Clegg says about the op-ed (via National Review Online):
“In a New York Times op-ed today, Profs. Lani Guinier and Susan Sturm discuss why they dislike standardized tests. They have no empathy, as it were, for Frank Ricci in the New Haven firefighters case, who earned his promotion by doing well on one. But the issue in that case was not whether this or that test was perfect; the issue was whether, having administered a particular test, it was illegal racial discrimination for the city to throw out the results because it didn’t like the skin color of the people who did well in it. And it’s hard to imagine that Guinier and Sturm would have written this op-ed if Frank Ricci and the other successful firefighters had been the right color or, more broadly, that they would work so hard to find objections to standardized tests if such tests didn’t so often have a politically incorrect disparate impact. Myself, I’m perfectly happy for cities to adopt whatever selection device they think is best, so long as they ignore race in making that decision.”
I believe objective tests are an excellent way to avoid being the victim of racial discrimination, even if minorities perform relatively poorly on those tests. There is always room for improvement, and factoring in race, even when it benefits minorities, has unintended consequences.
Minorities would do well to remove the government’s hand from the deck and rely on a “standardized” shuffle of the cards.
Filed under: Quotas, Roger Clegg | |Comments off
The Center for Equal Opportunity’s Roger Clegg, blogging at The Corner, dubs the coming months “Civil-Rights Summer,” because of several related issues. “Wise Latina woman” Sonia Sotomayor faces what I predict will be an easy confirmation process, and the Supreme Court will hand down rulings in the Ricci v. DeStefano and Voting Rights cases.
In Ricci, New Haven decided not to promote white firefighters who qualified for promotions because too few minorities qualified for promotions. In the Voting Rights case, the plaintiff seeks to eliminate Section 5’s pre-clearance requirement for changing voting procedures.
Clegg, who’s heard the oral arguments in both cases, says liberals won’t be too happy about the rulings. (I’m holding out hope the court properly interprets the Constitution and leads us in the direction of colorblind government policy.) Leftists will want the decisions in those cases overturned, naturally. Nothing new here to see. But here’s the novelty: a biracial president is on the hot seat. Clegg writes:
I think it’s fair to describe this as a crisis. The way it plays out will determine (not finally, since nothing is ever final in politics) but for some time whether America has shrugged off the principle of E pluribus unum. This, notwithstanding the fact that, in an increasingly multiracial and multiethnic society, it is untenable to have a legal regime in which citizens are sorted according to skin color and the national origin of one’s ancestors, and treated better or worse depending on which box they check.
We know that the Democrats in Congress will do the wrong thing — that is, they will do whatever they can to advance the use of racial preferences to the nth degree. They are hopeless. The question is, what role will the Republicans play — and what will President Obama do?
It’s going to be an interesting summer.
Filed under: Judiciary, Roger Clegg | |Comments off
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