Opening Argument – Affirming Justice Thomas

National Journal

For all the new attention focused on the tired old arguments about whether Clarence Thomas did or did not talk dirty to Anita Hill almost 25 years ago, his recently published memoir raises far more consequential issues. At the top of the list is Justice Thomas’s impassioned account in My Grandfather’s Son and recent media interviews of his conviction that racial affirmative-action preferences do African-Americans more harm than good.

The Thomas memoir brings this complaint to the fore at a time when a little-noticed battle is raging over an impressive and growing body of social-science research that offers some empirical support for Thomas’s view. This research suggests that preferences set many black students up for failure, as well as stigmatize the accomplishments of those who succeed and divert attention from the real causes of racial inequality.

So unsettling is this research — led by Richard Sander, a UCLA law professor and statistician — that affirmative-action champions are desperately seeking to deny Sander and other scholars access to the empirical databases that could provide even more graphic evidence of the costs of using heavy-handed preferences to engineer diversity.

Sander’s sophisticated statistical analyses suggest that racial preferences place so many black students into highly competitive law schools for which they are underqualified — and thus likely to fail — that there are actually fewer black lawyers than there would be if admissions were color-blind. Other scholars of diverse ideological views have joined Sander in seeking to shed more light on the validity (or invalidity) of his findings.

Opening Argument – Criminal Injustice and Race

National Journal

It is regrettable that the legend of the "Jena Six" has for many become the leading symbol of the grave injustices to African-Americans that pervade our nation’s penal system. The legend is partly false. And the notion that racism is the main reason for the injustices to hundreds of thousands of black defendants around the nation is entirely false.

To be sure, there is still too much racism among prosecutors, judges, and jurors. But this is far less widespread and virulent, even in Jena, La., than Al Sharpton and Jesse Jackson — the media-anointed (albeit, repeatedly discredited) African-American "leaders" — like to pretend. There are still too many unwarranted prosecutions of innocent minority (and other) defendants, as detailed in my August 4 column, "Innocents in Prison." But the vast majority of those prosecuted are guilty, as may prove to be the case with some or all of the Jena Six.

Rather, the heart of the racial injustice in our penal system is the grossly excessive punishment of hundreds of thousands of nonviolent, disproportionately black offenders whose long prison terms ruin countless lives and turn many who could have become productive citizens into career criminals.

The Supreme Court heard two cases on October 2 that focus on a relatively small piece of this problem: how much discretion federal district judges have to depart from federal sentencing guidelines that provide savagely severe prison terms for small-time drug offenders, among others. The most savage penalties of all are for people — overwhelmingly, black people — caught with fairly small amounts of crack cocaine.

Opening Argument – Is There a Middle Ground on Race?

National Journal

The June 28 Supreme Court decision sharply curbing the ability of school districts to pursue racial integration illustrates the pitfalls of both the conservative and the liberal blocs’ approaches to the problem of race. But finding a principled middle ground is not easy.

The conservatives. Chief Justice John Roberts’s plurality opinion for the four-man conservative bloc oversimplified the Court’s precedents in order to veer close to a "colorblind Constitution" absolutism that has never been the law. Roberts declared broadly that the integration programs before the Court — in Seattle and metropolitan Louisville, Ky. — "are directed only to racial balance, pure and simple, an objective this Court has repeatedly condemned as illegitimate." But no Supreme Court majority has ever condemned the pursuit of racial balance in public schools as illegitimate.

To the contrary, countless judicial decrees mandated race-based student assignments as a remedy for official segregation during the decades after Brown v. Board of Education. More to the point here, the justices said repeatedly during that era that communities with no such history of official segregation could pursue integration if they chose. Many lower courts said the same. This reflected a widespread view that racial isolation of minority students — especially poor blacks — hurts their educations and that proximity to children of other races can benefit all students by fostering interracial understanding and empathy.

Roberts unpersuasively brushed aside this body of precedent as though it had been silently overruled by the general language of more-recent decisions in the very different context of racial preferences in awarding government contracts and seats in selective universities.

Is There a Middle Ground on Race?

The Atlantic

The June 28 Supreme Court decision sharply curbing the ability of school districts to pursue racial integration illustrates the pitfalls of both the conservative and the liberal blocs’ approaches to the problem of race. But finding a principled middle ground is not easy.

The conservatives. Chief Justice John Roberts’s plurality opinion for the four-man conservative bloc oversimplified the Court’s precedents in order to veer close to a "colorblind Constitution" absolutism that has never been the law. Roberts declared broadly that the integration programs before the Court—in Seattle and metropolitan Louisville, Ky.—"are directed only to racial balance, pure and simple, an objective this Court has repeatedly condemned as illegitimate." But no Supreme Court majority has ever condemned the pursuit of racial balance in public schools as illegitimate.

To the contrary, countless judicial decrees mandated race-based student assignments as a remedy for official segregation during the decades after Brown v. Board of Education. More to the point here, the justices said repeatedly during that era that communities with no such history of official segregation could pursue integration if they chose. Many lower courts said the same. This reflected a widespread view that racial isolation of minority students—especially poor blacks—hurts their educations and that proximity to children of other races can benefit all students by fostering interracial understanding and empathy.

Roberts unpersuasively brushed aside this body of precedent as though it had been silently overruled by the general language of more-recent decisions in the very different context of racial preferences in awarding government contracts and seats in selective universities.

Opening Argument – A Different Way to Integrate Schools

National Journal

Is the Supreme Court about to kill all hope of racially integrating public schools? You might think so, based on the reactions of civil-rights groups, editorial writers, and others to two cases argued before the justices on Monday. They involve programs adopted by school boards in the Louisville, Ky., area and Seattle to promote racial balance in their schools despite segregated housing patterns.

The five more-conservative justices seem poised to strike down both of these plans and to ban — or severely restrict — consideration of any student’s race in deciding what school he or she may attend. But the news is not all bad for those of us who share the four liberal justices’ sense that more racial integration would give many students better educations and foster interracial understanding and social cohesion.

There is another — perhaps better — way to pursue these goals, one that also happens to be legally unassailable. This is to take account of students’ socioeconomic status in making school assignments and to give underprivileged students — who are disproportionately black or Hispanic — the opportunity to attend middle-class schools.

Some 40 school districts with about 2.5 million students, including Wake County, N.C. (Raleigh and suburbs), and San Francisco, already have such class-based programs. In Wake County, the school board replaced a long-established racial desegregation program in 2000 with one designed to keep the number of students eligible for subsidized lunches below 40 percent and the number who are not performing at grade level below 25 percent at every school.

Opening Argument – Michigan Voters Defy the Establishment

National Journal

A November 7 ballot proposal in Michigan drew passionate attacks from the Democratic Party, Big Business, unions, universities, the major newspapers, and religious, civic, and civil-rights groups. It drew tepid opposition even from the state’s top Republicans.

Among the attacks:

•"The proposal could have remarkably negative effects on … breast cancer screenings [and] domestic-violence shelters for women," editorialized The Detroit News.

•"It will immediately eliminate opportunities for women and minorities to have equal access to jobs, education, and contracts in Michigan," said a flier highlighted on the Web site of One United Michigan, the major establishment opposition group.

•It would "give [the state’s] universities, its local governments, its counties, and its state bodies the right to discriminate against blacks, Latinos, and women in violation of our federally guaranteed equal-rights protections," said By Any Means Necessary, the shorthand name of a more radical opposition group.

What is this horrible monstrosity? And why did Michigan’s voters adopt it by 58 percent to 42 percent after a campaign in which opponents outspent supporters by 4-to-1?

The Michigan Civil Rights Initiative, as supporters call it, amends the state constitution by outlawing racial discrimination against Asians and whites — as well as against blacks and Hispanics — in certain public programs. This is what Congress thought it had done in the 1964 Civil Rights Act before the courts went to work on it.

Opening Argument – How Racial Preferences Backfire

National Journal

Most — if not all — of the nation’s leading law firms seek to become more diverse by using "very large hiring preferences" for African-Americans and smaller preferences for Hispanics. So most of their newly hired minority lawyers have relatively weak academic records that would have brought rejection had they been white.

But these preferences are at best a mixed blessing — and are often a curse — for their recipients. After a year or two on the job, most minority associates at big firms get less desirable assignments and less training than their white counterparts. Many become discouraged and embittered. Young black lawyers leave big firms "at two or three times the rate of whites."

These problems plague minority lawyers precisely because of the racial preferences that got most of them hired. By lowering the big firms’ usual hiring standards, large preferences bring "disparities in expectations and performance that ultimately hurt the intended beneficiaries."

These are among the conclusions copiously documented by Richard Sander, a UCLA law professor, in a 66-page article soon to be published in the North Carolina Law Review. It is laden with meticulous statistical analyses of six publicly available data sets, including surveys of thousands of law students and lawyers at various stages in their lives and careers.

Sander’s blockbuster article, "The Racial Paradox of the Corporate Law Firm," rejects the conventional wisdom that racism explains why most young black lawyers in large firms do not fare well, and why barely 1 percent of big-firm partners — compared with 8 percent of new hires — are black.

Opening Argument – More Racial Gerrymanders

National Journal

When conservative Republicans such as House Speaker Dennis Hastert and Senate Majority Leader Bill Frist jointly sponsor Voting Rights Act amendments with such liberal Democrats as Rep. John Conyers and Sen. Edward Kennedy, be suspicious.

They are steamrollering through Congress bipartisan legislation to renew for the next 25 years a much-misunderstood, largely anachronistic provision (Section 5) of the Voting Rights Act, including amendments that are driven by racial-identity politics and that would aggravate ideological polarization.

The amendments would turn back the clock on racial progress by requiring even more racial gerrymandering of election districts than under current law. And the extension of Section 5, as currently drafted, would perpetuate an extraordinarily punitive oversight regime that gives to federal political appointees and not-exactly-apolitical bureaucrats at the Justice Department unreviewable power to dictate state and local election rules in nine (mostly Southern) states and some other jurisdictions.

Why would broad bipartisan majorities of House and Senate incumbents want to do that? To help themselves win re-election, for starters. More specifically, Democrats are pandering to the demands of black and Hispanic politicians for safe seats and to the ideological obsessions of the civil-rights lobby, which still sees America as so steeped in racism that whites just won’t vote for minority candidates.

Never mind that Douglas Wilder, an African-American, was elected governor of Virginia in 1989; Bill Richardson, a Hispanic, was elected governor of New Mexico in 2002; Colin Powell might well have been elected president of the United States had he run in 1996; nine of the 34 Georgia officials elected statewide are black; and so on, and so on.

Opening Argument – Young John Roberts: Reasonable On Civil Rights

National Journal

John Roberts "was on the wrong side of history" as a young lawyer in the Reagan and first Bush administrations. He was "hostile toward civil rights." His view of the Voting Rights Act was "no less harmful to our nation’s principles of inclusive democracy" than "the violence and intimidation of 1965."