Archive for Roger Clegg
From Roger Clegg, president and general counsel of the Center for Equal Opportunity:
“This year, the Justice Department filed an amicus brief that aggressively defended the University of Texas’ use of racial and ethnic preferences in its undergraduate admissions. (That case was argued last week.) More recently, evidence has surfaced that the administration weighed race in deciding which car dealerships to close.
“The administration also has declared that it will be aggressive in filing ‘disparate impact’ complaints. Under this theory, actions that are nondiscriminatory by their terms, in their intent, and in their execution are nonetheless challenged if they lead to politically incorrect numbers. Thus, for example, the administration has challenged a physical test for prison guards because, in its view, it was too difficult for women to pass; it likewise has warned schools that their discipline policies will be scrutinized for racial imbalances. Such an approach guarantees the implementation of surreptitious quotas.
“Racial preferences also are often expressed in the administration’s Federal Register notices (which the Center for Equal Opportunity monitors daily) and, of course, the president has picked federal judges who favor race-conscious policies, like the nominee for the U.S. Court of Appeals for the 9th Circuit, Goodwin Liu, not to mention ‘wise Latina’ Sonia Sotomayor.”
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The Pacific Legal Foundation’s Sharon Browne and the Center for Equal Opportunity’s Roger Clegg have created a model brief (31 pages PDF) for contractors and subcontractors who’ve been shut out of government contracts because of racial preferences.
Preferences proponents typically cite sentiment over the law to justify government discrimination. Black American’s ancestors were slaves, and blacks still living today were oppressed under Jim Crow. Until the “playing field” is level, they argue, the government should be allowed to consider race a hiring, contracting, and admissions qualification, as long as preferred minorities are not on the negative end of the discrimination.
The law is clear on the government’s use of race. It violates the Equal Protection Clause, which mandates that no state shall deny any person within its jurisdiction equal protection of the laws. It protects the rights of the individual, and racial classifications are group classifications. The question becomes, has the personal right to equal protection been infringed by the particular law? Race-based government action, therefore, receives the highest scrutiny by the judicial system. If the race-based measure is narrowly tailored to further a compelling government interest, it’s deemed constitutional.
Browne and Clegg outline the most important arguments against government racial preferences. An excerpt:
RACIAL CLASSIFICATIONS ARE PRESUMPTIVELY UNCONSTITUTIONAL UNDER THE EQUAL PROTECTION CLAUSE AND MUST BE SUBJECTED TO THE STRICTEST JUDICIAL SCRUTINY
[This section can be shortened based upon the knowledge and experience of the court.]
Decisions of the United States Supreme Court have made clear that distinctions between persons based solely upon their ancestry “are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality.” Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 214 (1995) (quoting Hirabayashi v. United States, 320 U.S. 81, 100 (1943)). All racial classifications by government are “inherently suspect,” id. at 223, and “presumptively invalid.” Shaw v. Reno, 509 U.S. 630, 643-44 (1993). Accordingly, the core purpose of the Equal Protection Clause is to eliminate governmentally sanctioned racial distinctions. City of Richmond v. J.A. Croson Co., 488 U.S. 469, 495 (1989).
Where the government proposes to ensure participation of “some specified percentage of a particular group merely because of its race or ethnic origin, such a preferential purpose must be rejected . . . as facially invalid. Preferring members of any one group for no reason other than race or ethnic origin is discrimination for its own sake. This the Constitution forbids.” Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 307 (1978).
All governmental action based on explicit racial classifications are subject to strict scrutiny to ensure that the personal right to equal protection has not been infringed. Adarand, 515 U.S. at 227. Thus, before resorting to a race-conscious measure, the government must “identify [the] discrimination [to be remedied], public or private, with some specificity,” and must have a “strong basis in evidence” upon which “to conclude that remedial action [is] necessary.” Croson, 488 U.S. 8 at 500. And even where there is a compelling interest supported by a strong basis in evidence, the program must be narrowly tailored to further that interest. Id. at 506; Adarand, 515 U.S. at 238-39. Moreover, the Supreme Court does not single out hard quotas and set-asides for strict scrutiny. The Court refers generally to any racial classification, and any racially defined goal or target.
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The Center for Equal Opportunity’s Roger Clegg was quoted in a Washington Times editorial on racial preferences in the financial regulation bill:
“Translated out of bureaucratic mumbo jumbo, this means federal hacks can pressure a vast array of private companies to make hiring decisions based on race. It is a backdoor way of instituting a racial quota system. Sure, no law will officially require a quota, but if the head of a small credit union doesn’t want to be harassed by the regulatory agency, or if there is a danger of losing any contract or subcontract with any larger institution subject to these regulations, he will know darn well that he needs to show that his institution has a high proportion of minorities and women as employees.
…
“Roger Clegg, president of the Center for Equal Opportunity, raised another valid point in a July 12 essay. ‘Constitutional issues are raised by the various provisions of Section 342 because it is problematic when the government uses classifications or preferences based on race, ethnicity or sex … Indeed, such classifications and preferences are ‘presumptively invalid.’”
Also see Clegg’s article about the bill.
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Although federal law allows states to bar felons from voting, a three-judge panel of the U.S. 9th Circuit Court of Appeals held that Washington state is violating the Voting Rights Act by barring felons from voting.
Sharon Browne, lead attorney for the Pacific Legal Foundation, and Roger Clegg, president and general counsel of the Center for Equal Opportunity, co-wrote an op-ed for the Los Angeles Times, in which they argue otherwise. An excerpt of: “Felons have lost their right to vote.”
“If a state were to use its felon disenfranchisement laws deliberately to keep blacks from voting, as was sometimes done in the Jim Crow era, then it is clear it would be in violation of the Constitution, and the Supreme Court has so ruled. But what if there is no such discriminatory intent: Is it enough to show that a disproportionate number of, say, African Americans are in prison?
“The answer is clearly no when it comes to the Constitution. The claim in Farrakhan, however, is that such disproportionate ‘results’ are enough to prove a violation of the federal voting rights law. The intent and history of the law refutes this claim.
…
“What’s more, the Constitution explicitly assumes that felons may be barred from voting. The 14th Amendment — which, like the 15th, was passed during Reconstruction to ensure equal treatment of African Americans — acknowledges that states can disenfranchise people for ‘participation in rebellion, or other crime.’ So an interpretation of the Voting Rights Act to bar felon disenfranchisement would not only be inconsistent with the intent of that statute, it would exceed Congress’ constitutional authority.”
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From the Pope Center (emphasis added):
“In November 2006 Jian Li filed a discrimination complaint against Princeton University. He graduated in the top 1 percent of his high-school class and received a perfect score of 2400 on the SAT, as well as perfect or near-perfect scores on the SAT subject-matter tests in math, physics, and chemistry. But those achievements were not good enough for Princeton, which turned down his application, as did Harvard, MIT, Penn, and Stanford.
“Mr. Li was aware that his race worked against him, since most selective universities give preference to African Americans, Latinos, and Native Americans over Asian, Arab, and European Americans. So he filed a complaint with the U.S. Department of Education’s Office of Civil Rights, arguing that students of Asian ancestry were judged by different criteria than some other groups were.
“Whatever the Obama administration decides to do with Mr. Li’s complaint (it is still ‘investigating’) there is no doubt that Asian Americans are discriminated against in university admissions. The studies published by my organization, the Center for Equal Opportunity, over the past 15 years have analyzed the admissions data obtained from the schools themselves through freedom-of-information requests, and have concluded that African Americans and, frequently, Latinos are given significant preferences over both whites and Asians.
Our study of the University of Michigan, for example, found that in 2005 an in-state male with no parent ties to the school, a 1240 cumulative SAT, and 3.2 high-school grade-point average had a 92 percent chance of admission if black and an 88 percent chance if Latino – but only a 14 percent chance if white and a mere 10 percent chance if Asian. Our study of six North Carolina schools – North Carolina State and the University of North Carolina campuses at Asheville, Chapel Hill, Charlotte, Greensboro, and Wilmington – found the same pattern.
“Students of Asian ancestry appear to face the same kind of treatment that Jewish students did decades ago. They’re held to higher standards than applicants from other groups in order to keep their numbers down and ensure more room for less academically gifted students from ‘underrepresented’ groups.”
Read the full article.
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At Minding the Campus, Roger Clegg dissects “Why U.S. News and World Report Should Include a Diversity Index in its Ranking of Law Schools” and discusses several so-called benefits of diversity.
One of the touted benefits of diversity is that it breaks down stereotypes. Let’s say students at a majority-white school with a race-neutral admissions policy believe blacks and Hispanics are not academically competitive with whites and Asians. To enlighten the poor fool and others like him, a school adopts a race-conscious admissions policy with the goal of admitting more blacks. Being in a classroom with blacks and Hispanics surely will debunk this notion.
Only the disingenuous would argue with a straight face that race-conscious admissions policies don’t entail lowering standards. So, the policy accomplishes the goal: more racial minorities in the classroom. How, exactly, does their presence debunk the intellectually inferior stereotype when said students were admitted under a lower standard of evaluation?
Clegg points out that the focus on race as a benefit perpetuates racial stereotypes. “If it means the stereotype that you can tell a lot about someone’s background, experiences, and perspectives simply by knowing their skin color and national origin, there is again a fatal irony if law schools try to teach this lesson through an admissions process that engages in precisely that stereotyping,” he writes. “I am also skeptical that, in a culture that vilifies racial stereotyping and is at pains to debunk it, the law schools’ intervention for students in their mid-twenties will have much marginal impact. Finally, teaching the rather obvious five-word truth “Blacks don’t all think alike” can be taught just as well, and without engaging in racial discrimination, simply by assigning students to read judicial opinions written by Thurgood Marshall, on the one hand, and Clarence Thomas, on the other.”
Another perceived benefit of diversity is that it generates “livelier and more enlightened classroom discussion.” Anecdotally speaking, I’ve never experienced this. Lively and enlightened discussions ensued from the topic of discussion itself, not whether the classroom was sufficiently diverse.
“What law professors crave is intelligent and well-prepared students, and choosing students on the basis of anything other than how smart and hard-working they are is unlikely to enlighten classroom discussion. There is also no way to predict whether a student, once admitted, will ever raise her hand, or whether what she says will have anything to do with her skin color. And, again, if it is important to admit students who are likely to volunteer unconventional opinions in class, it is completely unclear why we should use skin color and national origin as a proxy for this quality. Finally, while lively classroom discussions can certainly ease the tedium of what is read and, especially, lectured about in law school, let’s be honest: If law students are learning mostly from other law students, then they are not getting their tuition’s worth.”
Assuming something about an individual’s background because he’s black/white/whatever is stereotyping, but stereotyping is okay as long as the traits are positive, not negative. For example, the assumption that black and Hispanic students add a unique perspective to classroom discussions is good stereotyping. Assuming black and Hispanic students will, on average, receive lower test scores in the classroom is bad stereotyping.
The point is that assuming anything about anyone based on his race should have no place in admissions or hiring. That’s why it’s important to have race-neutral objective standards. Race-based admissions and hiring are inherently subjective, even if blacks benefit. A standardized method of evaluating removes race from the equation. Isn’t that a good thing?
Oh, to have the courage to actually live the “content of our character” principle and demand it of our government and our institutions! I’d rather people ignore me altogether than make race-based assumptions about me, positive or negative.
But I’m weird that way.
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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.
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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.”
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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.
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“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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