In response to the Department of Justice's decision to collect demographic data on police stops, arrests, and convictions to address potential racial biases, National Review Online contributors Heather Mac Donald and Roger Clegg baselessly accused the Department of Justice of attempting to "racialize criminal justice."
On April 28, the DOJ announced a new initiative that will allow local law enforcement agencies to compete for federal grant money to implement a data collection program that could help reduce racially discriminatory and unconstitutional police procedures. According to Reuters, the program hopes to specifically address the fact that "black men were six times more likely, and Latino men were 2.5 times more likely, to be imprisoned than white men in 2012."
Mac Donald, who is not shy about her incredibly offensive views on race, has previously argued that young black males possess a "lack of impulse control that results in ... mindless violence on the streets." In a recent column for NRO, Mac Donald argued that the DOJ's initiative "fingered as bigots not just the police, but the entire criminal-justice system" by attempting to address already documented racial discrimination.
Mac Donald also claimed that the DOJ's decision to collect demographic data on police stops and arrests was "part of the Obama administration's war on phantom racism, a colossal waste of taxpayer resources and a depressing diversion from the real problems affecting black and Hispanic populations." Mac Donald went on to ignore the constitutional violations associated with race-based policing, arguing that law enforcement's attention should remain focused on people of color because black teenagers "commit homicide at ten times the rate of whites and Hispanics combined." Ultimately, argued Mac Donald, the DOJ's initiative "will have no effect on crime," but it will "inhibit sound policing."
In response to Mac Donald, fellow NRO contributor and anti-civil rights activist Roger Clegg declared in an April 30 post that "of course Heather is right." Clegg went on to suggest that people of color who have been unconstitutionally targeted by the police should simply stop breaking the law:
Now, I'm not persuaded that there is widespread discrimination in drug-law enforcement either, but let's assume that there is. What should be done about it?
Step 1: Do not use, buy, or sell illegal drugs.
Step 2: If you belong to a racial or ethnic group that you think is targeted by the police, then especially do not use, buy, or sell illegal drugs.
Now, it may be objected that it is unfair if the police let white kids buy, use, and sell illegal drugs more than black and Latino kids. True, but when you think about it, it's really not a good idea to buy, use, or sell illegal drugs anyway.
At no extra charge, I will also provide another suggestion, for members of all racial and ethnic groups:
Step 3: Instead of using, buying, and selling illegal drugs, spend that time doing homework or something else that will improve your mind and character rather than destroy them.
Despite having no apparent understanding of Supreme Court precedent, Fox News host Bill O'Reilly still managed to accuse Supreme Court Justice Sonia Sotomayor of being wrong about civil rights law.
On April 22, the conservative justices of the Supreme Court effectively overruled an important strand of equal protection jurisprudence in Schuette v. BAMN, upholding a voter-approved state constitutional amendment that banned the consideration of race in admissions at Michigan's public universities. Right-wing media were enthusiastically supportive of the decision as they simultaneously insulted the intelligence of Sotomayor, and O'Reilly was no exception.
On the April 24 edition of The O'Reilly Factor, O'Reilly dedicated his "Talking Points Memo" segment to praising the Court's decision in Schuette. O'Reilly's misunderstanding of that decision, as well the Court's prior case law, became immediately apparent when he erroneously claimed affirmative action policies violate the equal protection clause of the 14th Amendment because "if an individual American gets a preference, then he or she is not being treated equally with everyone else."
O'Reilly went on to argue that Sotomayor, who wrote a powerful dissent in Schuette, "is clearly wrong, constitutionally speaking":
In the wake of the Roberts Court's latest attack on the constitutionality of race-conscious law, right-wing media are mischaracterizing the decision and Justice Sonia Sotomayor's dissent in a dishonest attempt to frame civil rights precedent as "racial discrimination."
On April 22, the Supreme Court ruled in Schuette v. BAMN, a badly split opinion in which the Court's five conservatives rejected long-established equal protection law under the Fourteenth Amendment to uphold Michigan's voter-approved ban on affirmative action. Right-wing media immediately began misinforming about the case, ignoring the serious consequences it could have for minority rights in the United States. By effectively overruling the "political process" doctrine, which forbids setting up a separate and unequal tier of political participation for a disfavored minority, the conservative justices reopened the door to the rigging of political systems, previously disallowed because of its negative impact on communities of color.
NRO continued its misinformation campaign about Schuette in its April 22 editorial, claiming that affirmative action is itself a form of prohibited racial discrimination. The editorial went on to call Sotomayor's dissent in Schuette "legally illiterate and logically indefensible" and "offers a case study in the moral and legal corrosion that inevitably results from elevating ethnic-identity politics over the law." To bolster the claim that Sotomayor is preoccupied by "ethnic-identity politics," the editors whistled to the 2009 right-wing media smears that the justice was a racist because she once referred to herself as a "wise Latina." From the NRO editorial:
In a perfectly Orwellian dissenting opinion, which she read dramatically from the bench, Justice Sotomayor argued that the decision of the people of Michigan to end racial discrimination is itself an instance of racial discrimination and that the only way to mitigate such racial discrimination is through the mandatory maintenance of racial discrimination. In this opinion she was joined by Justice Ginsburg, with Justice Kagan recusing herself from the case. Justice Sotomayor argued that Michigan's Proposal 2, which mandates race-neutral state policies, is the sort of legislation used to "oppress minority groups." By outlawing racial discrimination, she argued, "a majority of the Michigan electorate changed the basic rules of the political process in that State in a manner that uniquely disadvantaged racial minorities."
Justice Sotomayor is here arguing in effect that if a constitutional referendum doesn't go the NAACP's way, then its effects are invalid. This is not an exaggeration: Justice Soyomayor argues explicitly that Michigan's voters would have been within their rights to, for example, lobby university authorities to adopt race-neutral admissions standards but that by adopting a constitutional amendment insisting on race neutrality, thereby transferring the decision from the education bureaucrats to the people themselves and their constitution, they "changed the rules in the middle of the game." Her opinion is legally illiterate and logically indefensible, and the still-young career of this self-described "wise Latina" on the Supreme Court already offers a case study in the moral and legal corrosion that inevitably results from elevating ethnic-identity politics over the law. Justice Sotomayor has revealed herself as a naked and bare-knuckled political activist with barely even a pretense of attending to the law, and the years she has left to subvert the law will be a generation-long reminder of the violence the Obama administration has done to our constitutional order.
National Review Online is marking the 50th anniversary of the Civil Rights Act by calling on Congress to abolish its protections against racial discrimination.
On April 10, President Obama spoke at the Lyndon B. Johnson Presidential Library to honor the former president's work to pass and sign the Civil Rights Act of 1964, legislation that Obama explained was "as fundamental to our conception of ourselves and our democracy as the Constitution and the Bill of Rights." He added, "that's why I'm standing here today -- because of those efforts, because of that legacy," before warning that "history travels not only forwards; history can travel backwards, history can travel sideways. And securing the gains this country has made requires the vigilance of its citizens."
Instead of joining the president and the rest of America in celebrating this historic law that sought to push back against institutional discrimination and guard against future equal protection violations, an April 15 NRO column by Roger Clegg, Hans von Spakovsky, and Elizabeth Slattery called for Congress to gut key provisions of the Civil Rights Act, as well as the Voting Rights Act of 1965. Their proposal is rooted in the fact that these laws -- in recognition of the fact that racial discrimination in this country has been practiced against those who are not white for centuries -- are explicitly race-conscious and have "been expanded, however, through agency interpretation and activist court rulings to include 'disparate impact.'"
Rather than embrace decades of federal law, these NRO contributors instead prefer an ahistorical and so-called colorblind approach, where "provisions that might be read to authorize preferences or discrimination are hereby repealed or amended to authorize only consideration of factors other than race, color, ethnicity, or national origin." From the authors' opposition to fifty years of civil rights precedent on behalf of historical victims of racial discrimination:
The federal government wittingly and unwittingly endorses a great deal of racial discrimination in America. A 2011 report by the Congressional Research Service catalogued literally hundreds of government-wide and agency-specific set-aside and preference programs and grants throughout the entire executive branch that amount to some form of racial discrimination.
The "disparate impact" approach to civil-rights enforcement results in race-based preferential treatment -- often intentionally so. Eliminating such claims is therefore another way to help curb the use of racial and ethnic preferences.
In brief, an action that results in racially disproportionate results is considered to have an illegal disparate impact, even if the action is neutral on its face, in its intent, and in its application. This is not racial discrimination by any reasonable definition, and it forces employers, landlords, schools, and others either to discard legitimate criteria and selection procedures (for example, a physical or written test for firefighters or police officers) or to avoid racial disproportions by hiring, leasing, or disciplining (or designing tests and other selection criteria) with an eye to skin color, or both. The Obama administration loves this approach, alas.
After the conservative justices gutted the Voting Rights Act in Shelby County v. Holder, right-wing media complained that criticisms of the legal challenge were overblown because other provisions of the VRA remain intact to fight voter suppression. But now some of those same right-wing media figures have begun to flip-flop on that position, arguing that another crucial component of the VRA is unconstitutional as well.
National Review Online is pointing to instances of trouble at Texas polling places as proof that the state's overwhelmingly stringent voter ID law is "a good thing."
NRO contributors Roger Clegg and Hans von Spakovsky argued that because four prominent, white Texans were eventually able to vote after experiencing problems with their identification, complaints about the voter ID law are "hysterical." They went on to claim that a New York Times article that characterized the new ID law as "mak[ing] a dent at the polls" is overblown.
From Clegg and von Spakovsky's November 9 post:
A New York Times headline Thursday declared: "Texas' Stringent Voter ID Law Makes a Dent at the Polls." A careful reading of the article will leave many readers scratching their heads about that title.
The article begins by noting that three prominent Texans -- state judge Sandra Watts, state senator Wendy Davis, and state attorney general Greg Abbott -- all had photo IDs that did not quite match their names on official voter rolls, and so all had to sign affidavits before they could vote. But ... they all could and did vote.
Jim Wright -- another Texan, whom the Times helpfully identifies as a former U.S. Speaker of the House -- had an expired driver's license, and so he had to produce a birth certificate. But ... he also voted.
So, when all is said and done, where's the "dent"?
It's worth noting that these four voter-ID "victims" are hardly the poor, minority voters that the Left asserts are targeted by these laws. To the contrary, all four are white and quite prominent, one a Republican. They not only got to vote, they were alerted to discrepancies in their voter registrations that they can now get corrected.
This is the new Jim Crow?
The post went on to conclude that "there was really no problem after all" and that "there apparently are not large numbers of Texas voters who lack identification."
Evidently, the fact that one in 10 registered voters in Texas lacks valid identification is of no great concern to NRO. Although Texas will provide "election identification certificates" to voters free of charge, voters must provide proof of citizenship and identity in order to get one. The documentation required to obtain a certificate -- such as a U.S. passport -- is generally not free.
Affirmative action policies that will come before the Supreme Court in the upcoming Fisher v. University of Texas case have long been the target of right-wing misinformation that distort the benefits of diversity in higher education. Contrary to the conservative narrative in the media, these admissions processes serve important national interests by promoting equal opportunity and are based on long-standing law.
In a post criticizing leading American companies' support for the diversity principle in an upcoming Supreme Court case, National Review Online contributor Roger Clegg mischaracterized the nature of the companies' support for diversity, and incorrectly implied it is race-centric in violation of the Constitution. But as the amicus brief for these Fortune 100 companies argues, the pursuit of diversity in higher education is not only important to the nation's economic success, it is also constitutionally permissible.
In October, the Court will hear Fisher v. University of Texas, the latest high-profile civil rights case brought by a rejected applicant challenging a school's race-conscious admissions process. The opponents are asking the Court to not only strike down the specific admissions policy at the University of Texas, but also to reverse Grutter v. Bollinger, the Court's 2003 case that confirmed state consideration of race or ethnicity in higher education admissions -- as one factor among many -- is permissible to achieve the goal of student body diversity.
Clegg mischaracterized the brief filed in this case on behalf of corporations ranging from Wal-Mart and Halliburton, to Microsoft and Starbucks, that instead urges the Court to "reaffirm its holding in Grutter that the conscious pursuit of diversity in the admissions decisions of institutions of higher education - including diversity based upon race, religion, culture, economic background, and other factors - is a compelling state interest."