TWO GENERATIONS OF RACIAL PREFERENCE -- AND AMERICA STILL SLEEPS

          Two generations have now lived their entire lives under a government-mandated regime of racial preferences that effectively discriminates against white Americans in employment, education, and government contracting.  Although relief from this divisive race-based regime is long overdue, developments under the Obama Administration indicate instead that worse is yet to come -- while those on the unfavorable end of these policies seem to be steeped in lassitude.

            The federal government's so-called affirmative action policies, an institutionalized euphemism for mandatory preferences for minorities, have been with us for at least 45 years, i.e., since 1966.  Although one might expect that 45 years of official discrimination is enough, and that the remarkable advances made by minorities during that period would have brought an end or substantial curtailment of such policies, nothing of the sort has occurred. 

            As demonstrated by events summarized below, radical government racial preferences have actually been expanded rather than reduced – despite repeated Supreme Court opinions establishing that most of those  policies and practices violate the Constitution's guarantee of equal protection under the laws.  And in what may be the most insidious result of nearly a half century of this discriminatory regime, many, if not most, white Americans now seem resigned to this state of affairs as some kind of bizarre status quo that is pointless to resist. Rarely in human history has such a large class of persons so tamely acquiesced in policies so harmful to itself and its offspring.

            In 1964, Congress enacted the landmark civil rights legislation that outlawed race discrimination in employment.  Similar laws affecting housing, education, and public accommodations soon followed.  Had these laws been enforced in keeping with their original language and purpose – equal opportunity for all, and discriminatory preference for none – the nation could have avoided the half-century of racial friction, litigation, and recrimination that has actually followed their enactment.  Instead, federal agencies, Congress, and the courts transformed the law's anti-discrimination mandate into a relentless regime of racial preferences and quotas under the benign label of "affirmative action." 

            The flawed central premise of these policies was, and is, that the anti-discrimination laws mandated not merely equal opportunity and freedom from discrimination, but equal results.  The critical machinery adapted to achieve that end was the infamous "disparate impact" doctrine.  Under that theory, any aspect of a hiring or other selection process (e.g., college admissions) that resulted in less favorable outcomes for preferred racial or ethnic groups was deemed discriminatory.  Perversely, this doctrine expressly eliminated the requirement of discriminatory intent to prove unlawful discrimination.  And the whole machinery of the federal government and the liberal federal judiciary stood ready to strictly enforce this oppressive doctrine of no-fault discrimination.  Predictably, employers, colleges, and other institutions went to extreme lengths to avoid the harsh penalties that would follow a purported violation – they began to adopt and expand preferences that favored the protected minorities and, ipso facto, discriminated against whites.

            The practical reality of the anti-white discrimination was soon demonstrated.  Institutionalized "reverse discrimination" was (and remains today) especially tangible in the realm of university admissions, and a few intrepid white students denied admission in favor of less qualified minorities began to stand up and sue.  In 1971 (42 years ago), a white man named Marco DeFunis established in court that he had been discriminatorily denied admission to Washington's state-operated law school.  By the time his case reached the Supreme Court on appeal (DeFunis v. Odegaard, 416 U.S. 312 (1974)), however, it was held moot.  But a dissenting opinion by Justice Douglas – one of the most liberal justices in history – eloquently stated the core principal that has since been crudely ignored by federal and state governments, generally with impunity:  "There is no constitutional right for any race to be preferred. . . .  Whatever his race, [DeFunis] had a constitutional right to have his application considered on its individual merits in a racially neutral manner." 

                     Allan Bakke's well-deserved graduation from med school                              
            Four years later, in the landmark case of Bakke v. Bd. Of Regents, 438 U.S. 265 (1978) – in which this writer co-drafted an amicus brief supporting Allan Bakke -- the High Court held that California had unconstitutionally excluded a qualified white applicant (Mr. Bakke) from the state medical school in setting aside a quota of 16 of 100 available places exclusively for designated minorities.  But even while acknowledging the reality of institutionalized anti-white discrimination, the Court held that race-based affirmative action plans could be maintained as long as race was "merely" one of several factors considered – i.e., race could not be the dispositive factor in itself. 

          This constitutional compromise proved to be an ineffectual fig leaf.  Although whites have succeeded over the years with various specific claims of reverse discrimination in employment, government contracting, and college admissions since Bakke, the Supreme Court has failed to formulate a dispositive ruling on the issue.  Given the constitutional leeway allowed by the Court's prevarication – especially its ruling in Grutter v. Bollinger, 539 U.S. 306 (2003), that some racial preferences can be justified merely by the desirability of achieving racial diversity – a broad range of Government racial preference programs have continued in force to the present.  And the Obama Administration is busy expanding them.

            A few examples demonstrate the pernicious consequences of the persistent racial preference and disparate impact regime that is now simply taken for granted by an American public preoccupied by more stimulating matters, like the Super Bowl and the Academy Awards.

            Going back to the early 1970's, an alliance of anti-death penalty liberals and black organizations like the NAACP have invoked disparate impact analysis to argue that the death penalty is discriminatorily applied to blacks.  In fact, however, the opposite is true.  Blacks commit roughly half (or a bit more than half) of the murders that are alone subject to the death penalty, so one would logically expect blacks to constitute about half of those sentenced to death or executed.  In fact, however, Bureau of Justice Statistics have consistently shown for decades that whites are both sentenced to death and executed  in far larger numbers than blacks.  In 2010, for example, 33 whites were executed in the U.S., while only 13 blacks were executed, see Bureau of Justice Statistics, Capital Punishment 2010 – Statistical Tables, Tables 4, 9, and 13 (Dec. 2011) – whereas roughly 52% of convicted homicide offenders are black. See Office of Justice Programs, Homicide Trends in the United States, 1980-2008 (Nov. 2011).

            Faced with this statistical reality, the advocates of race-based "justice" shifted gears and argued that it is the race of the victims that should be examined to determine if the death penalty was racially discriminatory:  i.e., if the murderers of white victims were more likely to get the death penalty than murderers of black victims, the "system" was deemed discriminatory on disparate impact grounds, and violated the equal protection clause.  In short, these advocates wanted black murderers to be able to escape the death penalty because their victim was white and therefore the death penalty would by that fact alone be rendered unconstitutional.  In effect, they grotesquely argued that murderers should be able to invoke the race of the person they chose to murder as a means of evading the death penalty.  But in the case of McCleskey v. Kemp, 481 U.S. 279 (1987) – another case where I prepared an amicus brief opposing the race-based justice arguments – the Supreme Court held that mere statistical disparities were insufficient to establish that the death penalty was unconstitutionally discriminatory; it must be demonstrated that racial discrimination was actually intended in the defendant's individual case.

            Despite this ruling, and despite the demonstrable fallacy of their premise that the death penalty discriminates against black murderers, these racial justice advocates have persisted in pressing their false argument in the legislative and judicial arena.  In 1988, the late Senator Edward Kennedy championed radical federal legislation that would have prohibited states from imposing the death penalty if statistics could be manipulated to show any "disparate impact" in their past administration of the death penalty.  Only determined efforts by a small group of stand-up senators (I was active in advising them in my then role as Counsel to one of those senators) prevented passage of this radical legislation.  But in North Carolina, legislators have since ignored the reasoning of the McCleskey  case, as well as basic logic, in enacting a law that bars the death penalty based on the purported statistical patterns of past cases, even if there is no evidence of discrimination in the defendant's individual case.  In short, racial politics continue to be employed to trump truth and basic justice in the administration of the death penalty.

            Although the race-based distortions in the death penalty area are egregious, their impact is relatively narrow compared to the more far-reaching application of "disparate impact" doctrine and racial politics that produced disastrous results for the national housing market and the economy in the 2008 collapse of the subprime mortgage market.  As has been well-documented elsewhere, the subprime mortgage crisis resulted in large part from the loosening of standards of creditworthiness that led in turn to extensive defaults and devalued mortgage debt.  Mortgage credit standards were drastically loosened because of threats and pressure from federal regulatory agencies based upon the notion that normal credit standards discriminated against blacks and other minorities under the disparate impact doctrine and other contrived racial justice theories. Obama Attorney General Eric Holder, then the Deputy AG at the Justice Department, was a key player in pressing these disastrous policies.  In short, federal regulators encouraged or effectively required lending banks to make risky subprime mortgage loans to meet affirmative action goals in housing, with the disastrous results that were a major cause of the 2008 recession.

            Even while the subprime mortgage disaster demonstrates the damaging practical consequences of race-based policies, the realities of life in 21^st century America demonstrate the obsolescence of the premise for such policies – that African-Americans constitute, in the Supreme Court's famous phrasing in the case of U.S. v. Carolene Products, a "discrete and insular minority" that is powerless to protect itself through normal political processes.  Not only was the extremely cohesive black vote sufficient to assure the election of a black President in the last two elections, as well as 42 black members of the House of Representatives, but the increasingly influential role of blacks in high public life is further evidenced by the expanding succession of black Secretaries of State, Attorneys General, Presidential Advisers, federal judges, and other high officials.  It can no longer be credibly argued that blacks are entitled to preferential protection by law because they lack the political power to advance and defend their own interests.

             Nonetheless, far from moderating racial preference policies, the Obama Administration continues to reinforce and expand such policies.  The most egregious recent example is a radical regulatory mandate from the Equal Employment Opportunity Commission (EEOC) designed to prevent employers from performing criminal history checks in order to avoid hiring dangerous felons.  The premise for this dangerous and insidious policy is, once again, the discredited disparate impact canard. 

            Blacks represent a proportionately greater percentage of those with criminal records than whites for the obvious reason, firmly demonstrated by BJS data, that they have committed proportionately more crimes.  It naturally follows that screening potential employees to avoid hiring dangerous or dishonest offenders tends to have a mathematically "disparate" impact on black applicants, in that more black applicants with criminal records  will be identified.  But such a practice is in no way "discriminatory" under any reasonable understanding of the term; on the contrary, it is a necessary measure to assure a safe, secure, and honestly-run workplace.  But on the bogus grounds that this entirely sensible hiring practice has a discriminatory impact, the EEOC has issued a "guidance" that imposes such harsh conditions on the use of criminal background checks as to effectively discourage employers from using them.  Specifically, if the check reveals that the applicant has a criminal background (e.g, he is a convicted burglar or rapist), the employer is expected to conduct a thorough "individualized assessment" to establish that there is a genuine "business necessity" for refusing to hire the felon.  It is important to note in this respect that an employer is not required to conduct an "individualized assessment" for rejecting a perfectly honest applicant with a clean record on almost any grounds (e.g., his personality wouldn't be a good fit) not covered by the antidiscrimination laws.  In short, the EEOC's latest extension of the race-obsessed disparate impact doctrine effectively makes convicted felons a specially protected class in the eyes of the law.

            The EEOC's outrageous effort to prevent businesses from performing necessary criminal background checks on job applicants is merely one recent example of tyrannical and over-reaching race-based policies that have long outlived the purposes embodied in the civil rights acts of the 1960's.  Despite the obsolescence of the remedial basis for such policies, they are so deeply entrenched in our government and other institutions that only a determined and broadly-based movement could bring about their abolition or even substantially curtail them.  But given the political lassitude of much of the citizenry who are on the losing side of these racially preferential policies -- and their predilection for conflict avoidance on racial issues even when the welfare of their children may be at stake -- the prospects of eliminating institutionalized racial preferences are not promising in the absence of a widespread national attitude adjustment.