Tag Archives: Affirmative Action and Race

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Why This District Should Be Upheld

by Stuart Taylor, Jr.

The ridiculous-looking, 50-percent black congressional district in Dallas County, Texas, depicted on this page, was drawn in 1991 for the explicit purpose of creating a safe black seat (for one Eddie Bernice Johnson) in Congress.

Its geometry makes it one of the most irregularly shaped congressional districts in the nation, as was pointed out on Dec. 5, when the Supreme Court heard oral arguments in this term’s two big racial-gerrymandering cases.

(They are Bush v. Vera, in which a lower court struck down the Dallas district, along with one majority-black and one majority-Hispanic district in the Houston area, and Shaw v. Hunt, in which a lower court upheld two majority-black districts in North Carolina.)

Justice Sandra Day O’Connor-the swing voter who will almost surely determine the outcome of both cases-sounded like she was itching to strike down most or all of these five districts. But in the case of the Dallas district pictured here (District 30), that would be a mistake.

I don’t like uncouthly shaped, race-based districts either. Nor do I like it when (as here) the weirdness of the shape is largely attributable to the self-serving efforts of politicians to draw safe districts for themselves. But the Dallas district should nonetheless stand.

This is not to say that the Court should give states carte blanche to engage in unrestrained racial gerrymandering to increase minority representation. Nor is it to fault the Court’s June 29,1995, decision (in Miller v. Johnson) striking down as a racial gerrymander a majority-black district that had been improperly forced on the state of Georgia by the Justice Department, in the department’s headlong pursuit of proportional representation at all costs.

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Guilty and Framed

by Stuart Taylor, Jr

The American Lawyer

Death row celebrity journalist Mumia Abu-Jamal got an unfair trial before a biased judge. His "confession" was probably fabricated by police, who may have rigged other evidence too. But he is also – probably – an unrepentant cop-killer. So what now?

You’ve probably heard about the current darling of the radical-chic crowd and the America-bashing European intellectual set: Mumia Abu-Jamal, a convicted cop killer seeking to parlay his literary and black militant credentials into a ticket off death row.

In a full-page advertisement in the August 9 New York Times, 112 writers, actors, politicians, and others declared: "There is strong reason to believe that as an outspoken critic of the Philadelphia police and the judicial and prison systems, Mumia Abu-Jamal has been sentenced to death because of his political beliefs." The signers included the likes of director Oliver Stone, actors Mike Farrell and Paul Newman, Professor Derrick Bell, and the same Norman Mailer who helped free killer-author Jack Henry Abbott, who killed again.

Cornel West compares Jamal with Martin Luther King, Jr. Jesse Jackson compares him with Nelson Mandela (who has asked that Jamal be spared). And Jamal’s book, Live from Death Row, has helped make him an international cause cÈlËbre, selling more than 50,000 copies since May.

What you would not know from such stuff is that the evidence shows that Jamal is probably an unrepentant killer, who on December 9, 1981, stood over 26-year-old Daniel Faulkner and put a bullet between his eyes while the already wounded officer lay helpless on his back.

So why the big hoo-hah about this character? Is it just the old radical conceit that any black guy who shoots a white cop can’t be all bad, especially if he is a "revolutionary" with the Black Panthers on his resume, long dreadlocks, an engaging smile, and a way with words?

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Marching With Hate

by Stuart Taylor, Jr.

Only people tortured by a terrible thirst could have been assembled in such numbers at the behest of so detestable a demagogue as Louis Farrakhan, the white-bashing, Jew-hating, violence-threatening, sexist, homophobic leader of The Million Man March.

The thirst is understandable. It’s a thirst for leadership, and for hope of breaking the cycle of poverty, despair, and self-destruction that so disproportionately afflicts African-Americans.

But how much hope can be derived from an event at which (according to a Washington Post survey of 1,047 people) 87 percent of the participants queried had a "favorable" view of Farrakhan? This is a man who just days before had bared his fangs by smearing Jews as "bloodsuckers," a man whose history is littered with the vilest kind of hate speech and visions of violence against Jews and other whites.

And how much reconciliation and atonement can be derived from an event at which souvenir stands did a brisk business in T-shirts celebrating the acquittal of a black man who (the overwhelming evidence shows) had viciously murdered two white victims?

To understand the void now being filled by the ascension of Farrakhan, we might start with a look at President Bill Clinton’s speech on Oct. 16 (Farrakhan’s big day). While making some reasonable (if pallid) points about the need for interracial understanding, the president displayed the sort of pious hypocrisy that has stripped him of any standing to exercise moral leadership when he lamented "unequal treatment" of black people by the criminal justice system:

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Making Juries Look Like America

by Stuart Taylor, Jr.

‘State constitutional policies … require a trial court to consider racial demographics in exercising its authority … to change the venue of a criminal trial or to impanel a foreign jury."

So held the Appellate Division of the New Jersey Superior Court on June 12 in State v. Ambrose Harris, in which a black man is charged with raping and murdering a white woman. The court said that Harris-who had won a motion to import a jury because of inflammatory publicity in the racially diverse city where the crimes had occurred-had a right not to have the jury imported from a 98 percent-white suburban county.

Was the New Jersey court just crafting a rule for those rare cases in which venue is changed or jurors are imported? After all, a black defendant might not feel much better about facing an all-white jury if the reason was that his alleged crimes had been committed in a 98 percent-white county. So there is reason to wonder whether the New Jersey ruling may be a first step down the road toward some kind of right to a jury of one’s racial peers, enforced by racial quotas in jury selection.

Such quotas have, in fact, been urged by a few scholars, including Professor Sheri Johnson of Cornell Law School, who has written that black defendants should have a right to juries that include at least three black members.

Whatever the rules should be, it’s becoming increasingly clear that the jury system will be in grave peril if we cannot reverse our society’s drift toward ever deeper racial polarization and tribalism. The staggering racial divisions over the O.J. Simpson case-with 78 percent of whites in one recent poll believing him to be guilty of double murder, and 71 percent of blacks believing him to be innocent-do not bode well.

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Flunking the Honesty Test on Preference

by Stuart Taylor, Jr.

There is much To be said on both sides of the affirmative action debate. But one of the most troubling things about that debate has long been the fundamental dishonesty-or, at best, obfuscation-resorted to by many advocates of racial and sexual preferences.

President Bill Clinton’s long-awaited July 19 speech on affirmative action is a case in point. Through sly semantic sleight of hand, the president sought systematically to deny or obscure what every honest student of affirmative action preferences knows: In a great many (and perhaps most) cases, such preferences discriminate on the basis of race or sex against whites or males, in favor of minorities or women who are no better-and often demonstrably less-qualified in terms of relevant skills and experience.

To illustrate, it’s worth deconstructing one sentence from the president’s speech in some detail: "There are people who honestly believe that affirmative action always amounts to group preferences over individual merit; that affirmative action always leads to reverse discrimination; that ultimately, therefore, it demeans those who benefit from it and discriminates against those who are not helped by it."

The president went on to say that such criticisms were wrong. He was correct in a narrow literal sense, but only because somebody stuck the word "always" into his speech text to save the quoted assertion from logical indefensibility.

Clinton’s clear purpose here, however, was not to make the trivial claim that affirmative action does not always involve elevating "group preferences over individual merit" or "discriminat[ion] against those who are not helped": It was to imply that such phenomena are relatively rare and abusive exceptions, not the rule.

If words are to be given their ordinary meanings, the president’s implication was false, almost by definition.

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Affirmative Action and Ambivalence

by Stuart Taylor, Jr.

Racial preferences, or affirmative action, or quotas, or call-them-what-you-will, are back in the news:

• The Supreme Court-which has picked up four new justices in four years while losing its three strongest proponents of affirmative action-has agreed to decide a racial-preference case for the first time since it struck down a state program in 1989 and upheld a federal one in 1990, leaving the law in a state of uncertainty. The case, Adarand Constructors v. Peña, involves the preferential award of a federal highway subcontract in Colorado.

• Likely to arrive at the Court by 1996 is Taxman v Board of Education of Piscataway, a case that the Clinton Justice Department has made famous-to the delight of Republicans hoping to unseat the president-by defending a New Jersey school district’s decision to lay off a white teacher and keep an equally qualified black teacher, on the basis of race.

Also headed for the Court is the most disconcerting case of all: Hopwood v. Texas, an appeal involving the University of Texas Law School by white applicants challenging the school’s policy of seeking 5 percent black and 10 percent Hispanic enrollment by admitting several times as many minority students as would a colorblind process and passing over hundreds of whites with higher grades and test scores. Virtually every elite university in the country does the same, 16 years after the Court held in Regents of the University of California v. Bakke, 438 U.S. 265 (1978), that any regime that operates as a quota system driven by racial numbers was unconstitutional.

The supposedly temporary experiment with modest racial preferences on which this nation embarked in the 1970s has become a long-term, self-perpetuating addiction. With no end in sight, it is sapping the health of the body politic.

Both the benefits and the costs of racial preferences are familiar.

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Feminism and Educational Opportunity

by Stuart Taylor, Jr.

I have two daughters, 7 and 10 years old. I want them to have every opportunity to develop their educational potential to the fullest, so that they will be able to (among other things) compete against men for good jobs. And I am concerned that their opportunities will be diminished-not enlarged-by one of the feminist movement’s current crusades.

Feminist groups and their allies in the Justice Department are urging the courts to force the nation’s two remaining bastions of all-male, boot-camp-style, state-supported military education-Virginia Military Institute (VMI) and The Citadel, in South Carolina-to admit women. These cases, pending in the U.S. Court of Appeals for the 4th Circuit, seem likely to produce a major Supreme Court ruling. And if recent precedents are any guide, the feminists may well win.

I’m afraid that my daughters will be among the losers.

The immediate effect of such a decision, of course, would be to create opportunities for the tiny handful of young women who want the attend VMI and The Citadel. These institutions argue, on the other hand, that coeducation would impair the educational and social development of a considerably larger number of young men: those who thrive on the kind of harsh regimen of physical and psychological adversity that VMI and The Citadel now offer, which might have to be watered down to accommodate coeducation.

Of more concern to me is the probable secondary effect of a precedent barring all male education at VMI and The Citadel: It would raise higher the already daunting legal barriers to experimentation with any form of public single-sex education.

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DOJ Nominee’s Authentic Black Views

by Stuart Taylor, Jr.

Starting in 1981, the Reagan administration adopted the civil-rights agenda of the Republican right wing. It was a cheap way to appease a key constituency. The Justice Department’s Civil Rights Division was put under William Bradford Reynolds, whose policies were skewed by preoccupation with the threat of quotas and reverse discrimination against white males: He adopted a tone of self-righteous ideological certitude that polarized debate and obscured the strengths of his own position.

Now it appears that the Clinton administration may be starting down a similar road by adopting the civil-rights agenda of the Democratic left wing-including a proclivity for pushing the use of thinly veiled racial quotas. The best evidence is President Bill Clinton’s nomination of Lani Guinier, an impressive litigator-scholar with some alarmingly radical views, to head the Civil Rights Division.

Guinier sees white racism as an evil so pervasive and persistent as to require the most drastic of remedies-like junking "American majoritarianism" in favor of court-ordered allocation of "proportionate power" among racial blocs in legislative bodies. She says that civil-rights enforcement is and must be "a result-oriented inquiry, in which roughly equal outcomes, not merely an apparently fair process, are the goal." She suggests black legislators are "authentic representatives" only if they "are politically, psychologically, and culturally black."

And she has reviled Reynolds, six Supreme Court justices, and others with a bitterness and stridency that makes Reynolds’ rhetoric seem almost mild by comparison.

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Clinton and the Quota Game: Round One

by Stuart Taylor, Jr.

Bill Clinton’s outburst last week at women’s groups who were "playing quota games" by carping about the number of women in his Cabinet was a welcome gesture of independence from the parochial agendas of Democratic interest groups. But it was also vaguely reminiscent of Lord Byron’s line about a conflicted maiden:

A little she strove, and much repented.

And whispering "I will ne’er consent"-consented.

Even as he denounced "quota games, Clinton was accommodating the quota psychology by giving assurances that his ”look like America" Cabinet would have at least four women (it does), and by suggesting that one or more prime candidates had been nudged aside on grounds of white maleness. Indeed, the Clinton transition team had signaled for weeks that no males-at least, no white males-would even be considered for attorney general.

The scuffling over the Clinton Cabinet’s chromosome count is a harbinger of a far more consequential, if less visible, struggle that will rage inside the Clinton coalition in 1993 and beyond, over how hard civil-rights enforcers should push the nation’s employers to pursue diversity through use of preferences for women and, especially, minorities.

Striking the right balance in this area will be exceedingly difficult even for one so adroit as Clinton at tempering his commendable pursuit of diversity with a well-timed shot at quota-minded "bean counters." The greatest danger to Clinton, and to this multiracial nation’s future, is that his administration will quietly succumb to unrelenting pressure from civil-rights and women’s groups to adopt their legal agenda wholesale. This would not merely give employers a healthy incentive to seek diversity; it would institutionalize something very like quotas throughout the American work force.

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A Step Toward a Jury of One’s Fears

by Stuart Taylor, Jr.

"We have exalted the right of citizens to sit on juries over the rights of the criminal defendant, even though it is the defendant, not the jurors, who faces imprisonment or even death."

Justice Clarence Thomas, who has often condoned unfairness to defendants, has it right this time. His was the most telling point in the fiveopinions generated by the Supreme Court’s unfortunate June 18 decision to bar criminal defendants and their lawyers from talcing account of race in jury selection.

The majority’s bizarre holding in Georgia v. McCollum was that defense lawyers violate prospective jurors’ equal-protection rights-and do so on behalf of the state-when they use their peremptory challenges to strike people they suspect might be less sympathetic to the defendant because of their race.

This does violence both to the fairness of the criminal-justice process and to the integrity of the state-action doctrine. It also, paradoxically, vindicates the symbolic appearance of racial inclusion at the expense of the concrete interest of black defendants in choosing black jurors.

McCollum has been welcomed by some as a logical and benign corollary of the Court’s 1986 decision in Batson v. Kentucky to bar prosecutors from using peremptories to remove blacks from juries.

But the reality is that Justice Harry Blackmun’s majority opinion is a classic example of good intentions gone wrong and step-by-step extensions of legal doctrine gone too far.

The notion of curbing race-based peremptories by defendants may seem momentarily attractive to liberals in the wake of the acquittal of four white Los Angeles cops, who beat black motorist Rodney King, by a Simi Valley jury that included no blacks.