Tag Archives: Affirmative Action and Race

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The Rule of Nonsense at Harvard Law

by Stuart Taylor, Jr.

The whiff of censorship is in the air at the Harvard Law School. Look for a push by the faculty’s left wing this fall to adopt a campus speech/"harassment" code-one of those affirmative-action models aimed at punishing insensitivity toward women and minorities while smiling on the stigmatization of white males.

And look for more demands for appointment of a faculty-student committee-selected by racial and sexual quota-to investigate the "atmosphere" for signs of a "hostile environment."

The stage has been set by the widely publicized outcry this spring over the unfortunate scribblings of two student members of the Harvard Law Review. A sampling of the reaction;

• An open letter by "15 faculty members including liberal luminary Laurence Tribe declared the article a symptom of a law-school environment "seriously hostile to women" and pervaded by "institutional sexism and misogyny," especially in its hiring practices.

• Professor Elizabeth Bartholet added that the "incident and the charges of related matters involving treatment of women … involve conduct that is arguably illegal under federal and state civil rights law governing sex discrimination and sexual harassment," and "possibly tortious."

• Professor David Kennedy pressed the law school’s administrative board to bring formal discipline against the offending students because their actions-"lie … at the point where sexual harassment verges into assault," and involve "a terrorization of women general and feminist women in particular"-even "a direct threat of personal violence."

This outpouring of learned nonsense was provoked by students engaging in what used to be called pure speech: the publication of a parody.

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The Civil-Rights Bill: Punt to the Courts

by Stuart Taylor, Jr.

The conventional wisdom about the civil-rights bill compromise is that President Bush, afraid he was looking more and more like KKK-alumnus David Duke, simply caved in.

Liberals exult that the president abandoned a morally and politically indefensible position by embracing belatedly the same salutary reforms that they had been seeking all along.

Meanwhile, conservatives like columnist Patrick Buchanan bash the president for capitulating to a "quota bill."

Wrong, wrong, wrong.

These figments of Democratic spin-controllers and right-wing hardliners, uncritically adopted by much of the national press as the bill sped toward final passage last week, are egregious oversimplifications.

Not as egregious, to be sure, as the president’s own transparently absurd position that what he had been denouncing for 20 months as a "quota bill" had been transubstantiated, by a few strokes of the pen, overnight, into a good and upright "source of pride for all Americans … a non-quota civil-rights bill."

Oversimplified rhetoric begets oversimplified rebuttal. President Bush and his aides may deserve a dose of their own medicine.

Irreconcilable Differences

But the truth is that this was a classic, convoluted legislative deal, with both sides giving significant ground, inch by inch, while papering over irreconcilable differences and leaving the hardest policy decisions unresolved:

• The White House won more than it lost on the "quota" front, by holding out for crucial last-minute changes in language regarding statistically based "disparate impact" lawsuits. The compromise bill is far less likely than the original Democratic proposals to increase pressure on employers to use racial hiring preferences and significantly less likely to do so than the revisions advanced last summer by Sen. John Danforth (R-Mo.).

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The Road Beyond Racial Preferences

by Stuart Taylor, Jr.

Why should a rich black lawyer’s child get into an elite college ahead of a struggling white factory worker’s child who has pushed himself harder and achieved better grades and test scores?

Why should either of them get the nod, for a university slot or for an entry-level job, over a poor child from the black inner city or white Appalachia who has slightly lower scores but has shown exceptional drive to overcome adversity?

Such questions-and the broader one of whether affirmative action for racial groups should give way to class-based preferences for individuals who have overcome disadvantage-are coming starkly into focus with Judge Clarence Thomas’ probable ascension to the Supreme Court.

The nominee’s broadside attacks on racial affirmative action in recent years suggest he may well cement a majority for eviscerating most or all race-based affirmative-action programs.

But Thomas also told the Senate Judiciary Committee that he favors preferences for those who have overcome barriers of social, economic, and educational deprivation.

He defended the affirmative-action plan that helped him get into Yale Law School in 1971 by saying (with questionable accuracy) that it was aimed at applicants who had done well despite "socioeconomic disadvantages" and that "the kid could be a white kid from Appalachia, could be a Cajun from Louisiana, or could be a black kid or a Hispanic kid from the inner cities or from the barrios."

In his own hiring decisions, Thomas added, "We look[ed] for people who have had some of the disadvantages….I think you can measure a person by how far that person has come and by what that person has overcome to get there….And I think we all know that all disadvantaged people aren’t black, and all black people aren’t disadvantaged."

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Why Confirm an Artful Dodger?

by Stuart Taylor, Jr.

It is hard not to have doubts about the fitness of Judge Clarence Thomas for the Supreme Court after his sometimes distressingly evasive testimony to the Senate Judiciary Committee last week.

He was not credible when he told the committee that he had never discussed Roe v. Wade with anyone, at Yale Law School or since, nor developed an opinion about it.

He was unconvincing in repeatedly disavowing, rather than defending, the apparent meaning of his controversial (but perfectly defensible) past statements on the importance of "economic rights" and the like.

Thomas’ stubborn insistence that his mishmash of musings about natural law had no relevance to constitutional adjudication, for example, is hard to reconcile with his 1988 contention that "the higher-law background of the American Constitution . . . provides the only firm basis for a just, wise and constitutional decision."

He dodged too many questions about law by talking about his now famous grandfather and reciting chapters from his justly celebrated climb out of poverty and segregation.

Thomas’ efforts to depict himself as a reassuring moderate fly in the face of a paper trail that suggests a tendency to veer toward ideological extremes and an uncritical enthusiasm for conservative nostrums.

In recent years he has gone beyond expressing grave (and well-founded) doubts about the fairness and social costs of racial preferences; he has condemned wholesale virtually every Supreme Court decision going back to the 1978 Bakke case that has upheld any kind of preference for minorities or women, even as a last resort to put an end to an employer’s continuing, egregious discrimination against blacks.

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Quelling the Fires of Hate Speech

by Stuart Taylor, Jr.

If the First Amendment protects political protesters who burn the American flag, must it also protect racist hate-mongers who burn crosses and display swastikas?

That is just one of the questions floating through a major case the Supreme Court will face in its coming term. It’s a case that divides free-speech libertarians from civil-rights groups, and that puts to a severe test our commitment to what Oliver Wendell Holmes called "freedom for the thought that we hate."

The Court’s decision could shed light on the validity of the codes barring various forms of offensive speech that have been adopted by dozens of cities, states, and universities. Spawned by rising concern about outbreaks of racist harassment, the codes have in turn provoked complaints about censorship of "politically incorrect" views.

The facts the Court will confront in R.A. V. v. St. Paul, No. 90-7695, are ugly. A group of white teen-agers burned a cross on the front lawn of the only black family living on a block in St. Paul in the early morning hours of June 21, 1990.

One of the alleged cross-burners, Robert Viktora, was charged under a 1989 city ordinance making it a crime to place on private or public property a burning cross, swastika, or any other "symbol, object, appellation, characterization or graffiti … which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender."

The main issue for the Court will be Viktora’s claim that he cannot be prosecuted under the hate-speech ordinance because it is unconstitutional on its face.

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It’s Time to Mend the Civil-Rights Rift

by Stuart Taylor, Jr.

With President Bush excoriating House Democrats for passing a "quota bill"-and being savaged in return for fanning racial divisions-the rancorous debate over how much to expand job-discrimination remedies threatens to do race relations more harm than any law could cure.

But even as the opposing partisans have descended deeper into oversimplification and name calling, the real gap between their proposals has narrowed.

For the good of the country, it is imperative to bridge the gap and to get this issue behind us. A replay of last year’s Bush veto of a Democratic civil-rights bill would only suffuse the 1992 campaign with the poison of racial politics.

It should now be possible to come up with a statesmanlike compromise between the mainly Democratic bill that the House passed last week. 273-158. and the Bush administration’s competing proposal.

Statesmanship has been in short supply among the contending partisans-President Bush and the Democrats alike-as they have grappled for rhetorical advantage and the political high ground.

But Sen. John Danforth (R-Mo.) threw a glimmer of hope into this disturbing picture last week, by rounding up eight other moderate Republicans to sponsor a three-bill package that draws from both the president’s and the Democrats bills and seeks to bridge their differences.

Danforth says he acted out of a conviction that "it’s important to extricate the racial question from partisan politics." He would judiciously expand remedies for victims of job discrimination while seeking to avoid undue pressure on employers to adopt surreptitious quotas.

Danforth’s approach would improve both on current law, which the Supreme Court in 1989 tilted against job-discrimination plaintiffs, and on the House-passed bill, which would go too far in the opposite direction.

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Electing By Race

by Stuart Taylor, Jr

The American Lawyer

IT’S A CURIOUS COALITION, WITH A seductive but disquieting agenda.

In Georgia black leaders, the American Civil Liberties Union, and the Bush Justice Department are challenging as racially discriminatory a state law that requires legislative and judicial candidates to win by a majority vote.

Across America civil rights lawyers and minority politicians, often with Republican support, are preparing a potent legal and political.offensive to create as many election districts as possible with heavy black or Hispanic majorities as the decennial redis-tricting process gets under way. Under current Voting Rights Act doctrine (as well as reigning liberal political orthodoxy), a lawyer advising nervous Democrats says, "racial gerrymandering is almost required" to create odd-shaped black or Hispanic districts. So race is the first criterion, and a quagmire of litigation looms.

And, in two pending Supreme Court cases, minority plaintiffs are pushing, with qualified Justice Department support, for full application of the Voting Rights Act to judicial elections. The plaintiffs want to force Louisiana to draw a black majority election district for its supreme court and to force states that elect trial judges to abandon jurisdiction-wide voting in favor of single-judge districts, drawn wherever possible along racial lines. These developments illustrate an alliance of convenience that has developed between civil rights lawyers – who for 25 years have battled with astonishing success for full voting rights for blacks and other minorities – and Republicans, whose enthusiasm for minority office-holding surfaced more recently, in tandem with their awareness of how it can help their side.

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Rigging Test Scores By Race

by Stuart Taylor, Jr.

Four jobless workers take a standardized test of cognitive skills from a government job-referral service. All have identical actual scores of 300.

But the scores reported to prospective employers and to the workers themselves are another story: The first gets an 83, because she is black. The second gets a 67, because she is Hispanic. The third and fourth each get a 45, because they are white and Asian, respectively.

This is one example, based on a Labor Department score conversion table, of race-norming, a widely used but little-known practice of adjusting test scores by race, so as to give each group a proportionate share of the highest scores.

Race-norming is about to be brought out of the shadows, if Republican critics of the Democratic civil-rights bill have their way.

The Republicans are pushing to outlaw race-norming, or at least to expose it to the public as "the oil which greases the quota engine," in the words of R. Gaull Silberman. She is vice chairman of the Equal Employment Opportunity Commission.

Democrats have so far supported race-norming, while talking about it as little as possible. But if they want to shake the "quota bill" label President Bush has hung around their necks, they may have to think again, or to do some explaining:

If you really aren’t trying to promote covert racial quotas, then why do you support a system of covertly rigging test scores to achieve a rigid quota of racial proportionality at each score level?

Most people have never heard of it, but race-norming has been used by 40 state employment services in making job referrals, and by an unknown but apparently large number of companies, to eliminate the adverse impact on blacks and Hispanics of the tests that are often used in preliminary screening of job applicants.

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Education and Accidents of Birth

by Stuart Taylor, Jr.

Harvard, like most universities, gives alumni children a break in admissions. Some Asian-Americans see this as illegal discrimination, because mostly white "alum-kids" bump Asian-Americans who would otherwise get in.

The Education Department recently ended a probe into this particular thumb on Harvard’s scales, finding it justified by the need to sustain the flow of alumni dollars and volunteer work.

But Asian-Americans aren’t satisfied. And their complaint (which also encompasses preferences for athletes, most of whom are white or black) opens a useful window onto the larger controversy over racial affirmative action.

The most obvious point is that the conservatives who denounce the unfairness of preferences for (mostly non-Asian) minorities are strangely silent about alumni preferences. This lack of symmetry renders their arguments a bit suspect.

If fairness is the end and merit selection the means, then it should be as important to make Harvard and its ilk "alum-blind" as to make them colorblind. Indeed, a strong case for discriminating against alum-kids might be inferred from a 1979 article by that scourge of affirmative action, then Professor Antonin Scalia.

After trashing racial preferences-as an effort to ease the WASP conscience at the expense of those whose immigrant parents (like Scalia’s father) "never profited from the sweat of any black man’s brow"-Scalia appended an intriguing afterthought:

"I do not, on the other hand, oppose-indeed, I strongly favor-what might be called …’affirmative action programs’ of many types of help for the poor and disadvantaged. It may well be that many, or even most, of those benefited … would be members of minority races…. I would not care if all of them were."

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Two Cheers for Civil-Rights Bill

by Stuart Taylor, Jr.

There is much of value in the omnibus bill unveiled last week by a bipartisan congressional coalition and leading civil-rights groups to reverse several major Supreme Court decisions last year. But the bill needs some amending.

The remedies available to victims of intentional job discrimination under current law are plainly inadequate. That was made clear by the Court’s decision last June in Patterson v. McLean Credit Union, which denied any legal redress to victims of even the most outrageous racial harassment in the workplace.

The proposed Civil Rights Act of 1990, co-sponsored by 34 senators and 123 House members, would rectify this by giving the full range of compensatory and punitive damages to victims of intentional job discrimination.

It’s sad that the Bush administration’s more limited proposal-to improve monetary redress only in cases of intentional racial discrimination-comes so late, in an apparent effort to pre-empt the congressional bill.

But methinks the champions of that bill protest too much when they insist, in the words of the Leadership Conference on Civil Rights, that it "has nothing to do with quotas or any other affirmative-action remedy."

If enacted and enforced as written, the bill’s disparate-impact provisions would create a powerful presumption that any employer with a workforce in which minorities were significantly underrepresented was guilty of racial discrimination.

The bill would also make the burden of overcoming this presumption so heavy that it could pressure employers surreptitiously to use quotas to improve their statistics-hiring and promoting racial minority-group members or women, as the case may be, on a preferential basis over equally or better qualified white males.