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 21st 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.
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.