Race-Based Affirmative Action Makes Things Worse, Not Better

The New Republic

The Supreme Court made clear last month that it would keep affirmative action racial preferences on the front burner of the national conversation for at least the next year. This autumn, the Court will review a federal appeals court’s 8-7 decision striking down a 2006 Michigan voter initiative that banned racial preferences in state university admissions. Meanwhile, the justices are drafting their opinions in a reverse-discrimination lawsuit by a disappointed white applicant to the University of Texas that was argued last October. That decision, the first major constitutional challenge to racial preferences since 2003, is expected by June 28.

With four ardent conservative opponents of racial preferences likely to be joined by Justice Anthony Kennedy–who has never upheld a racial preference–the Court seems likely to strike down the Texas program but not likely to outlaw racial preferences entirely. The Court also seems likely to reverse the federal appeals court decision in Michigan and uphold the state’s 2006 initiative banning racial preferences in state programs. (The issue there is not whether it’s unconstitutional for universities to use racial preferences excessively, but whether it’s unconstitutional for voters to prohibit them entirely.)

The big question, however, is whether the Court will rule so narrowly that its decisions will have little impact outside Texas and Michigan, or will, for the first time, impose serious restrictions on the very large racial preferences that are routine at almost all of the nation’s selective universities. Will these cases mean a dramatic overhaul, and shrinkage, of race-based affirmative action as we know it?

Why the Court Wants to Try Again

The Washington Post

The Supreme Court is scheduled to hear oral argument next week in Fisher v. University of Texas, the high court’s first case on the use of race in higher education admissions since its 2003 decisions in Gratz v. Bollinger and Grutter v. Bollinger. Why did the court decide to revisit this issue after less than a decade? Much of the speculation on this question centers on the shift in the court’s alignment; since Justice Samuel Alito replaced Justice Sandra Day O’Connor in 2006, the court is less sympathetic to racial preferences. But another factor is perhaps as important: Grutter and Gratz laid out a strategy for containing affirmative action that clearly, objectively failed.

Did Precedent Make Sotomayor Rule Against Ricci? – The Ninth Justice

National Journal

Judge Sonia Sotomayor has not defended her most widely criticized decision — the one rejecting a discrimination lawsuit by 17 white firefighters, and one Hispanic, against the city of New Haven, Conn. — as a just or fair result.

That would have been an uphill battle: Polls in June showed that huge majorities of the public wanted the Supreme Court to reverse Sotomayor’s decision.

And as I’ve explained elsewhere, although the Supreme Court split 5-4 in ruling for the firefighters in Ricci v. DeStefano, all nine justices rejected the specific legal rule applied by Sotomayor’s three-judge panel. That rule would allow employers to deny promotions after the fact to those who did best on any measure of qualifications — no matter how job-related and racially neutral — on which blacks or Hispanics did badly.

Instead of defending her panel’s quota-friendly rule and its harsh impact on the high-scoring firefighters, Sotomayor and her supporters have argued that she essentially had no choice. The rule that her panel applied had been dictated, they say, by three precedents of her own court, the U.S. Court of Appeals for the 2nd Circuit.

Some critics have expressed skepticism about this claim, but the media have shed little light on its plausibility. I seek to shed some below.

Because some of this gets technical, I’ll begin with critics’ simplest rebuttal to Sotomayor’s precedent-made-me-do-it claim:

Sotomayor, Gates And Race – The Ninth Justice

National Journal

Soon-to-be-Justice Sonia Sotomayor has called herself "a product of affirmative action" who was "accepted rather readily into Princeton" despite test scores that were lower than those of more privileged classmates due to "cultural biases built into testing."

Harvard professor Henry Louis Gates Jr., capitalizing on the avalanche of publicity he touched off by attributing to racism his July 16 arrest at his home by a white police officer, has declared that America is "racist" and "classist" and that "there haven’t been fundamental structural changes in America…. The only black people who truly live in a post-racial world in America all live in …

From National Journal‘s July 18 issue:

Soon-to-be-Justice Sonia Sotomayor has called herself "a product of affirmative action" who was "accepted rather readily into Princeton" despite test scores that were lower than those of more privileged classmates due to "cultural biases built into testing."

Harvard professor Henry Louis Gates Jr., capitalizing on the avalanche of publicity he touched off by attributing to racism his July 16 arrest at his home by a white police officer, has declared that America is "racist" and "classist" and that "there haven’t been fundamental structural changes in America…. The only black people who truly live in a post-racial world in America all live in a very nice house on 1600 Pennsylvania Avenue."

What Sotomayor and Gates share is a habit of drawing dubious lessons about race from their own experiences.

Study Finds No Sotomayor Bias in Race-Related Cases – The Ninth Justice

National Journal

The concerns that I and others have raised about Judge Sonia Sotomayor’s now famous "wise Latina woman" speech, and about her vote last year to uphold race-based discrimination in promotions among New Haven firefighters, raise this question:

Has Sotomayor exhibited a pattern of favoritism to minorities in race-related cases during her more than 10 years on the U.S. Court of Appeals for the 2nd Circuit?

The answer is no, according to Tom Goldstein of Akin Gump’s Washington office, a leading Supreme Court litigator. He has published on SCOTUSBlog, in two installments, the results of his own study of the 97 race-related cases Sotomayor has helped decide on the appeals court.

After summarizing statistics indicating that Sotomayor is not especially prone to rule for plaintiffs in discrimination cases and rarely disagrees with her 2nd Circuit colleagues in such cases, Goldstein concludes:

"Given that record, it seems absurd to say that Sotomayor allows race to infect her decisionmaking."

Others may look at the same cases and draw different conclusions. And Goldstein’s analysis does not altogether dispel my concerns that once on the Supreme Court, Sotomayor’s sympathies for particular groups may skew her views of the facts and the law. See my past columns here, here and here.

Let The Honest Talk About Race Begin

National Journal

Dear Mr. Attorney General:

Your speech commemorating Black History Month by calling America "a nation of cowards" because we "do not talk enough with each other about race" — a topic about which we talk incessantly — was unworthy of the admirable public servant I believe you to be.

The speech was, as others have pointed out, embarrassingly misinformed, hackneyed, and devoid of thoughtful contributions to racial dialogue.

You can do much better. Please use your bully pulpit in the future to cut through the usual cant and state some politically incorrect truths about race in America that would carry special weight if they came from you. That would require mustering the courage to take on the Democratic Party’s powerful racial-grievance lobby. But it would do the country a lot of good.

The one point that you developed in a bit of detail in the February 18 speech was especially silly: "Black history is given a separate, and clearly not equal, treatment…. Until black history is included in the standard curriculum in our schools and becomes a regular part of all our lives, it will be viewed as a novelty, relatively unimportant and not as weighty as so-called ‘real’ American history."

Bosh. The reality is that our high schools and universities are quite clearly focusing disproportionate attention on black history.

The proof includes a poll published last year in which 2,000 high school juniors and seniors in all 50 states were asked to name the 10 most famous Americans, other than presidents and first ladies. The top three finishers were black: Martin Luther King Jr. (67 percent), Rosa Parks (60 percent), and Harriet Tubman (44 percent). So is the only living finisher, Oprah Winfrey (22 percent).

Racism Marginalized — Even If Obama Loses

National Journal

An African-American candidate with left-of-center views and less than four years in the Senate appears poised to win the presidential election over a seasoned white war hero who was until lately a media darling.

And Barack Obama’s favorability rating (53 percent favorable to 33 percent unfavorable) in a recent CBS News/New York Times poll was "the highest for a presidential candidate running for a first term in the last 28 years" of that poll.

There is much to celebrate in this, even for supporters of John McCain. Win or lose, Obama has proved (if more proof were needed) that although many blacks are still mired in poverty — a legacy of our racist history — contemporary white racism has been driven to the fringes and is no longer a serious impediment to black advancement.

So, is the racial-grievance crowd celebrating? Hardly. Instead, the obsessive search for ever-more-elusive evidence of widespread white racism and sneaky appeals to it goes on.

The McCain-Palin campaign has certainly showed an ugly side as its fortunes have faded. Examples include Sarah Palin’s recent suggestion that small towns were "the pro-America areas of this great nation," for which she has had to apologize; her earlier claim that Obama had been "palling around with terrorists"; and McCain’s warnings about Obama bringing "socialism" and "welfare." The mood of some lowlifes at McCain-Palin rallies has turned uglier still.

But the complaint that this shows that McCain and Palin are peddling "racist garbage" in code, as Harold Meyerson (to pick one example) wrote in the October 22 Washington Post, seems contrived.

Voters: Racism Is Not the Problem

National Journal

Is Barack Obama–now closer than ever to winning the Democratic nomination–nonetheless at a political disadvantage because of white racism, or "racial fears," or "race-baiting," or racial "double standards," as some commentators have suggested?

The evidence indicates otherwise, as it pertains both to this election and more broadly to the perennial tendency of many in the racial-grievance groups, the media, and academia to exaggerate how much white racism remains and its impact on African-Americans.

But many of the voters who have been unfairly tarred as racist do have a different flaw that Hillary Rodham Clinton and John McCain are working especially hard to exploit: ignorance of elementary economics and other things every high school graduate should know, which accounts for the low quality of the debate on issues ranging from the gas tax to trade to the budget.

More on voter ignorance later. First, let’s examine the notion that white racism, or efforts to fan it, underlie Obama’s recent difficulties in winning over middle-class white voters.

"It is an injustice, a legacy of the racist threads of this nation’s history," The New York Times declared in an April 30 editorial, that Obama was so widely called upon to repudiate the Rev. Jeremiah Wright while the media have given much less attention to McCain’s courtship of an equally bigoted white, far-right Texas pastor named John Hagee. The editorial pre-emptively condemned as "race-baiting" any campaign ads showing Wright in action. Times columnist Frank Rich and PBS commentator Bill Moyers voiced similar complaints. And Steve Kornacki wrote in the April 29 New York Observer that Wright was being and will be "used to stoke racial fears and prejudices about Mr. Obama."

Opening Argument – Obama Logic Versus Racial Preferences

National Journal

"I think that my daughters should probably be treated by any admissions officer as folks who are pretty advantaged, and I think that there’s nothing wrong with us taking that into account as we consider admissions policies at universities. I think that we should take into account white kids who have been disadvantaged and have grown up in poverty and shown themselves to have what it takes to succeed." — Barack Obama, May 13, 2007

This Obama response to a question by ABC’s George Stephanopoulos about whether the children of two well-off Harvard law graduates should "get affirmative action" (meaning racial preferences) has potentially radical implications for a Democratic presidential contender.

Although Obama has often embraced racial preferences, the above-quoted statements — as well as his inspirational rhetoric about getting away from racial categorizing — are hard to reconcile either with the regime of racial preferences that now pervades this country or with Democratic orthodoxy on the subject.

Obama seemed to imply that "advantaged" African-Americans should not receive affirmative-action preferences — at least, not at the expense of less advantaged Asian-Americans or whites — in college admissions, or (one might extrapolate) other walks of life.

But most recipients of racial preferences are relatively advantaged. According to the most comprehensive survey of the relevant data, although white students are wealthier on average, 86 percent of the black students (and 98 percent of whites) enrolled in 28 selective colleges came from middle- or upper-class backgrounds. (The numbers come from a 1998 book, The Shape of the River, by William G. Bowen and Derek Bok, both ardent champions of racial preferences.)

Opening Argument – Perils of the Race and Gender Cards

National Journal

Playing the race card is not really Barack Obama’s style. Although happy to use his racial identity as an asset, he seeks to transcend it by getting beyond obsessing about racial grievances. This is not easy in a party that has long wallowed in the politics of group grievance. It is especially difficult when running against a woman who has so assiduously used the gender card while profiting from her own victimization at the hands of the same unfaithful husband who now joins her in tag-team distortions of Obama’s record.

Gloria Steinem took Hillary Rodham Clinton’s I-am-woman-vote-for-me approach to the limit in a New York Times op-ed by suggesting that it would be better to elect a white woman than a black man because women got the franchise 50 years later and have "no masculinity to prove."

So perhaps Obama should be forgiven for piling on a bit after other black leaders implausibly accused Clinton of showing disrespect for the Rev. Martin Luther King Jr. when she pointed out that King needed President Johnson to push civil-rights laws through Congress. Obama was ill-advised to call Clinton’s statement "ill-advised" and "unfortunate." But would forbearance have cost him black votes?

"All the habits of verbal thuggery that have long been used against critics of affirmative action [and of] radical feminism," David Brooks observed in his New York Times column, "are now being turned inward by the Democratic front-runners."

Is it too much to hope that this embarrassing identity-politics brawl proves to be a learning experience for liberals about the dangers of reflexively attributing racist, sexist, and other bigoted motives to people who disagree with or displease them?