Tag: Fisher

Government Racism on Trial: Schuette and EEOC v. Kaplan

Today the Supreme Court hears argument in the Schuette case, regarding the constitutionality of Michigan voters’ decision to ban racial discrimination and preferences in public university admissions (the equivalent bans for public employment and contracting haven’t been legally challenged). In no conceivable world can the Equal Protection Clause – the constitutional provision that bans racial discrimination – prohibit a state law that bans racial discrimination. The Supreme Court should and almost certainly reverse the lower court’s ridiculous judgment to the contrary, and will likely do so with a great degree of unanimity on the “political structure” aspect of the case.

Coinciding with that oral argument, Cato is getting involved in a lower-court case called EEOC v. Kaplan Higher Education Corp. Here’s the situation: Following several incidents of employee theft, Kaplan University did what any reasonable employer might do in similar circumstances: it instituted heightened screening procedures for new hires. This process included credit checks to filter out potential employees at greater risk of committing theft. These checks made no mention of any applicant’s race and Kaplan didn’t collect any race information from applicants, thus making the hiring process both race-neutral and race-ignorant. Nevertheless, the Equal Employment Opportunity Commission, which itself uses credit checks in hiring decisions, sued Kaplan under Title VII of the Civil Rights Act, claiming that the use of credit checks has an unlawfully disparate impact on African American applicants.

Because Kaplan doesn’t keep racial data for applicants, the EEOC had to come up with its own data to prove its case. The agency thus created a team of “race raters,” a group of seemingly random people who sorted Kaplan’s job applicants into racial categories based only on the applicant’s name and DMV photo. (You can’t make this stuff up!) Because of the unscientific and unreliable nature of this data, the EEOC was soundly rebuffed in the federal district court in Ohio where it brought its case.

Now before the U.S. Court of Appeals for the Sixth Circuit, the EEOC is continuing its awkward crusade against employers’ use of credit checks. Cato, joining the Pacific Legal Foundation, the Center for Equal Opportunity, the Competitive Enterprise Institute, and Project 21, has filed a brief supporting Kaplan and arguing that the EEOC’s use of “race raters” and its incautious application of disparate-impact theory violate the Fifth Amendment’s equal protection guarantee.

Classifying people into racial categories based on their name and physical features is a demeaning violation of the Constitution’s mandate that individuals be treated as individuals and not reduced to mere members of a racial class. We also argue that the EEOC’s irresponsible use of disparate-impact theory to attack reasonable business practices contradicts the spirit of equal protection by forcing employers to consider race for all of their business-related decisions in order to avoid bureaucratic entanglement.

When combined with the ongoing Fisher v. UT-Austin saga, we see that while Jim Crow is dead, various government actors continue to offer massive resistance to the ideal of a colorblind society.

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.