Archives: 10/2013

Obama Administration Ignores Supreme Court, Encourages Racial Preferences

Two months ago I wrote about the University of Texas’s attempts to delay the final reckoning from the Supreme Court’s near-unanimous ruling in the Fisher case that public institutions must overcome a high constitutional bar when they use race in admissions decisions. Courts must make “a careful judicial inquiry into whether a university could achieve sufficient diversity without using racial classifications.”

“The university must prove,” Justice Kennedy wrote for the 7-justice majority, “that the means chosen by the university to attain diversity are narrowly tailored.” Far from attempting to prove that, however, UT-Austin is playing lawyer games and trying to re-litigate previously decided procedural issues.

But at least UT-Austin recognizes that its back is against the wall. The Obama administration, for its part, is pretending that nothing has changed, that colleges can continue discriminating based on skin color to achieve their elusive “diversity.”

On Friday, the federal Justice and Education Departments issued a joint “guidance” on the meaning of Fisher v. UT-Austin. This advice, consisting of a platitudinal cover letter and a superficial Q & A. The government’s position, remarkably, is that Fisher simply reaffirmed 2003’s ruling in Grutter v. Bollinger, which held that educational diversity could be a compelling interest that justified racial preferences at the University of Michigan. “Run along, nothing to see here,” the various civil-rights-division bureaucrats seem to say, “the Supreme Court just vacated the lower court’s decision because it didn’t check all the procedural boxes.

To say that the government is being disingenuous here would be like saying that Ted Cruz has a mild distaste for Obamacare. As Richard Kahlenberg comments at the blog of The Chronicle of Higher Education:

This reading of the two Supreme Court cases as essentially identical would presumably be surprising to the justices of the court. Five Supreme Court justices participated in both Grutter and Fisher, yet four of them switched sides in the two cases. Justices Anthony M. Kennedy, Antonin Scalia, and Clarence Thomas dissented in Grutter, in part because universities were not made to demonstrate that race-neutral strategies were insufficient to produce racial diversity, yet those justices were in the majority in Fisher.

Meanwhile, Justice Ruth Bader Ginsburg switched in the other direction, from the majority in Grutter to the dissent in Fisher. Her dissent complained that the majority would push universities to adopt race-neutral strategies like Texas’ top 10-percent plan, which she viewed as disingenuous. (Justice Stephen G. Breyer, alone, was in the majority in both cases.)

Moreover, the government is green-lighting any and all diversity initiatives rather than giving actual guidance about how to survive the legal minefield that administrators now inhabit. As Roger Clegg put it at National Review Online:

The fact is that this guidance is designed not to help schools follow the law, but to push them to adopt dubious race-based policies that the Supreme Court has warned against, and that have prompted lawsuits in the past, but that the Obama administration and its political allies stubbornly support. The whole tone of the new guidance is to offer encouragement to schools that want to engage in racial and ethnic discrimination: The administration promises that it “will continue to be a resource” for such schools.

It is as if the FBI offered eager encouragement to state and local police that wanted to engage in racial profiling without violating the law. Whether such discrimination may sometimes be legally permissible or not, why should the federal government issue a document the tone of which is not a stern warning about the many legal pitfalls, but cheerful encouragement to the police to do as much of it as they can get away with? Why urge schools to get as close to the legal line as they can, when it is unnecessary and bad policy for them to approach it at all?

In short, the government not only pretends that the Supreme Court didn’t mean what it said, but is encouraging college officials in their massive resistance to yet another Supreme Court ruling on civil rights. These actions enable the type of “holistic” racial balancing that results in greater racial-achievement gaps than illegal quotas ever did. Racial preferences today, racial preferences tomorrow, racial preferences forever.

It would be comical if it weren’t so sad – and if it weren’t backed by the full force of the nation’s chief law enforcement officers.

Thoughts on the Government Shutdown

All eyes are on the government shutdown battle over Obamacare. Here are a few thoughts:

  • House Republicans had six months to strategize since the last budget battle, so why did they leave it until the last minute to figure out what to do? They seem to have been unified in recent votes to defund and delay Obamacare. So why didn’t they announce their strategy months ago, draw a hard line, and then spend the summer building public support for their plan? The Democrats have a stronger hand because they have been giving a consistent message.
  • The lack of leadership from the House created a void that Senator Cruz filled. Some House members didn’t like Cruz getting the spotlight and telling them what to do, but they should have had their act together.
  • Obamacare opposition has been rising steadily this year. Even if Republicans don’t succeed with defunding Obamacare at this point, the polls may convince them to try again later. This battle could have been just a warm-up for a future battle if the polls get even worse for Obamacare.
  • Why might the polls get worse? Some reasons are: more employers dropping health benefits, more employers cutting worker hours, more insurers cutting doctors out of their plans, premiums continuing to rise, individuals rebelling against the mandates and penalties, health exchanges suffering glitches and meltdowns, rising privacy concerns from the massive government data grab created by the law, etc, etc. See Mike and Mike for more.
  • Obama and the Democrats brought the Obamacare backlash onto themselves, not only by imposing a very bad law, but also by slamming it through Congress in a very partisan manner. No Republican voted for it in either the House or the Senate. If you want a law to garner sustained political support, it is much better to pass it in a bipartisan manner, as was the case with welfare reform in 1996 and tax reform in 1986.
  • The 2001 Bush tax cuts garnered 28 House Democratic votes and 12 Senate Democratic votes. Yet even with that bipartisanship, Democratic leaders spent the subsequent decade relentlessly demonizing the law and trying to repeal parts of it. So for Democrats to say that it is unfair for Republicans to try and repeal Obamacare just because the president was reelected is ridiculous.
  • Democrats say that it is irresponsible to hold the economy and budget “hostage” to Obamacare repeal efforts. I don’t think so. Unless repealed, Obamacare is a huge issue for the nation’s health care system and the economy in coming years, so any short-term unpleasantness is a trifle compared to what’s at stake. As for the economy, the stock market rose during the last shutdown period in 1995/1996.
  • It is not fair for media stories to say that it is just a few “extremists” who want to delay or defund Obamacare. The House delay vote garnered all the Republicans except two, which made for a substantial majority in the people’s chamber. Indeed, Republicans probably wouldn’t be trying to defund Obamacare without the people’s strong and consistent opposition.
  • The way to limit Washington’s battles from harming the economy is to untether the economy from Washington. We should, for example, privatize many of the national parks or hand them over to the states and privatize air traffic control. Washington budget battles will likely get even more disruptive in the years ahead, so let’s start privatizing and devolving as many federal activities as we can right now. The problem isn’t the GOP taking the budget “hostage” to repeal Obamacare, it is the government taking hostage far too much of the American economy.
  • So I favor government shut-downs. That is, permanent shut-downs of federal activities that ought to be funded by state governments, the private sector, or nobody at all.