November 13, 2012

Is Obama's victory a sign of "racial progress?"

By Joshua P. Thompson Senior Attorney

Following Obama’s victory last week, Ilya Somin of the Volokh Conspiracy wrote that “it’s certainly a sign that racism has greatly declined, and that African-Americans are more fully accepted in mainstream American society than ever before.”  There is a certain kernel of truth in that statement.  Having a black American as the head of state is indicative of a country that has moved beyond a past that treated black individuals as second-class citizens.  The skeptic, of course, could attack that assertion from both sides.  On the one hand, states with the most sordid history of discrimination against black Americans voted overwhelmingly for the white candidate, arguably demonstrating a lack of “racial progress.”  On the other hand, well-before Obama was elected, the United States already had black Supreme Court Justices, Secretary of State, governors, senators, congressmenmayors, etc. — even in those states with a sordid history of discrimination — which indicates that Obama’s (re)election vis-a-vis his race was nothing extraordinary. Regardless of where one lands on the empirical debate of the symbolic value in having a black president, it is unquestionable that Obama’s reelection vis-a-vis his policies, is a giant step-backward for racial progress.  Racial progress should be measured by how inconsequential race becomes in society.  Under President Obama, however, race is a major focus of government policies.

Under Obama, the Justice Department has taken to vigorously defending racial preferences in federal courts.  While, it is not unusual for the Justice Department to defend congressionally-mandated racial preferences, the Obama Administration has taken the unusual step of filing amicus briefs in the circuit courts on state-mandated racial preferences.  For example, the Obama Justice Department filed an amicus brief in Fisher at the Fifth Circuit, and it also filed an amicus brief in support of California’s race-conscious contracting policy in the Ninth Circuit.  The Obama Administration has shown a willingness to defend racial preferences wherever they occur.

Every administration has defended the constitutionality Section 5 of the Voting Rights Act (including the Bush 43 Administration), but the Obama Administration has used its Section 5 enforcement power to contest facially constitutional practices.  Despite the Supreme Court upholding voter ID laws in 2008, the Obama Administration has refused to preclear them in states that are covered under Section 5.   Attorney General Holder went so far as to compare voter ID laws to poll taxes.

Worst of all, however, is the Obama Administration’s significant increase in disparate impact enforcement.  Disparate impact is the theory that one can presume discrimination is the cause of a statistical disparity in employment. For example, if a city offers a written test for fire fighters, and black applicants pass at a 50% rate, but white applicants pass at a 85% clip, then discrimination is presumed to be the cause of the disparity.  We have blogged many times about the problems with the disparate impact theoryand need not rehash them all here.  Perhaps Justice O’Connor summed up the problems with the theory best when she wrote:

“[T]he inevitable focus on statistics in disparate impact cases could put undue pressure on employers to adopt inappropriate prophylactic measures. It is completely unrealistic to assume that unlawful discrimination is the sole cause of people failing to gravitate to jobs and employers in accord with the laws of chance.”

The Obama Administration’s record on disparate impact is despicable. They have brought Title VII disparate impact lawsuits against government policies that have been explicitly ruled legal in the past.  The Obama Administration has used disparate impact theory to prevent businesses from using credit checks, a high school diploma, or criminal records.  The White House put out an Executive Order telling high schools that they shouldn’t discipline children color-blindly.  Instead, school discipline should be meted out in a manner that avoids a disparate impact.  The Administration has brought disparate impact cases under the Fair Housing Act — where there is absolutely no statutory authority to do so.  And when the City of St. Paul brought that issue to the Supreme Court — whether there is a disparate impact cause of action under the Fair Housing Act — the Obama Administration pressured St. Paul to abandon its Supreme Court case.  [The Supreme Court may take this issue up again this term.]  In sum, there is no aspect of American life (save perhaps basketball), where the Obama Administration isn’t willing to take a race-first attitude to ensure “proper” racial balance.

So, yes, electing a black president demonstrates the willingness of the American people to look beyond race.  Unfortunately, this President isn’t willing to do the same.

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