The editorial board of The Wall Street Journal attacked constitutional race-conscious admissions policies in higher education, but completely botched Supreme Court precedent as well as the Department of Justice's current legal position on this topic.
Trying to drive a wedge between Justice Anthony Kennedy's recent majority opinion in Fisher v. University of Texas, which reaffirmed that considering race as one among many factors in a holistic admissions policy is constitutional, and DOJ's recent legal brief in the now-remanded case, the WSJ declared that Kennedy "is getting an unpleasant lesson in the Obama Administration's respect for Supreme Court authority." From the November 11 WSJ, timed for Wednesday's oral arguments before the U.S. Court of Appeals for the Fifth Circuit:
In June, Justice Kennedy wrote the opinion for a 7-1 majority in Fisher and remanded it for a rehearing. His opinion stopped short of ending racial preferences in education, but it did emphasize that the use of race in admissions had to be held to the "strict scrutiny" standard laid out in the 2003 University of Michigan case Grutter v. Bollinger. Under Fisher, Justice Kennedy explained, race preferences should be carefully drawn and universities were entitled to "no deference" when courts examined how colleges used race in admissions.
So much for that. According to the Justice Department's brief, strict scrutiny needn't be strict, or even amount to much scrutiny.
[R]ather than looking at percentages of students of varying races admitted or matriculating, the Justice Department argues, the court should make "a qualitative assessment of the educational experience of the university." This is the admissions version of a shell game, dodging the Supreme Court's explicit strict scrutiny instructions by letting a school define its own criteria for using race.
But the Supreme Court never held that universities are accorded "no deference" in judicial review of their consideration of whether and how to diversify their institutions through race-conscious admissions policies, and DOJ never denied the appropriateness of strict scrutiny for this use of race.
Under long-standing affirmative action law, educational institutions can constitutionally use the consideration of race among other characteristics in an individualized holistic review of applicants. As reaffirmed by Fisher, contrary to the WSJ's inaccurate claim, when a university is deciding whether or not its diversity is at the "critical mass" necessary for its educational mission, a court's deference to educational judgment on this evaluation is entirely appropriate. From Kennedy's Fisher opinion:
According to Grutter, a university's "educational judgment that such diversity is essential to its educational mission is one to which we defer." Grutter concluded that the decision to pursue "the educational benefits that flow from student body diversity," that the University deems integral to its mission is, in substantial measure, an academic judgment to which some, but not complete, judicial deference is proper under Grutter. A court, of course, should ensure that there is a reasoned, principled explanation for the academic decision. On this point, the District Court and Court of Appeals were correct in finding that Grutter calls for deference to the University's conclusion, "`based on its experience and expertise,'" that a diverse student body would serve its educational goals.
Washington Post columnist Charles Lane recycled erroneous Fox News claims about California's new TRUST Act, which details how state officials can constitutionally participate in federal immigration policy.
On October 21, Lane provided misleading talking points to right-wing media on the topic of an appellate judge's recent admission that strict voter ID has proven to be voter suppression. A week later, the exchange was reversed, with Lane repeating debunked misinformation on the TRUST Act previously broadcast by Fox News host Bill O'Reilly.
In his most recent column, Lane falsely claimed that the TRUST Act was "in tension" with the Supreme Court's decision in Arizona v. United States, which reaffirmed long-standing Supremacy Clause precedent that forbids state law from conflicting with federal immigration law. Like O'Reilly's confused analysis before him, this is a conflation of the unconstitutional attempts of Arizona to usurp federal immigration powers with the separate - and unchallenged - constitutional justification behind the TRUST Act. From the October 29 edition of the Post:
California's new law limits cooperation with the federal Secure Communities program, under which the fingerprints of arrestees that local police routinely send to the FBI also get routed to U.S. Immigration and Customs Enforcement (ICE).
When ICE registers a "hit" against its database, it tells the state or local jail to hold the individual for up to 48 hours so that federal officials can pursue deportation if appropriate. Between March 2008 and September 2011, Secure Communities led to more than 142,000 deportations.
California's new law forbids police to detain anyone under Secure Communities unless the individual has been convicted of or formally charged with certain serious crimes such as murder or bribery -- but not, say, misdemeanor drunk driving.
It's the mirror image of a provision of Arizona's immigration law that essentially required Arizona police officers to check with ICE about everyone they arrested. The Obama administration opposed that as unwanted and unnecessary meddling in federal decision making -- but it was the only aspect of Arizona's crackdown that the Supreme Court upheld.
So: If the Supreme Court says that one state (Arizona) may pester federal immigration authorities with more information about detainees than they asked for, can another state (California) deny the feds information they might seek?
But the surviving provision in Arizona's troubled immigration law (SB 1070) mentioned by Lane involved communication between state and federal officials, whereas the TRUST Act delineates immigration detention powers. These are two entirely separate areas of enforcement underpinned by separate legal justifications.
Contrary to Lane's argument, that is not a "mirror image."
The National Review Online is trying to push back on the mea culpa of a judge who now thinks strict voter ID does in fact impermissibly discriminate, maintaining its long-standing position as a supporter of election changes that have been widely denounced as blatant forms of voter suppression.
In 2007, well-known and respected conservative Judge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit upheld a voter ID law in Indiana that was the first in a wave of increasingly stricter restrictions on the right to vote passed by Republican-controlled legislatures. Affirmed by a splintered Supreme Court, as the sole high-profile legal decision on the sort of unnecessary and redundant voter ID laws that are now widely promoted by the GOP, Crawford v. Marion County Elections Board has been incessantly trumpeted by right-wing media as the legal underpinning for their obsession with election changes that are documented to suppress the vote.
Now that Posner has bluntly admitted he was wrong and the evidence shows that strict voter ID is "now widely regarded as a means of voter suppression rather than fraud prevention," NRO is resorting to smearing the judge's integrity and intelligence.
Legal contributor Hans von Spakovsky, the repeatedly discredited champion of photo voter ID laws as the alleged "solution" to the virtually non-existent "problem" of in-person voter fraud, responded to the news of Posner's recent admission by claiming the judge had "been taken in" by the "Left's well-oiled propaganda machine." NRO's in-house legal expert, Ed Whelan, asserted that a switch in judgment by the judge was "weak" and praised a Washington Post columnist who attacked the judge as unethical for speaking publicly.
Von Spakovsky's attempt to rebut Posner's revelation by pointing to increased turnout in communities of color was a rehash of his continued failing of Statistics 101. As has been explained to von Spakovsky and others by statisticians, academics, and congressmen, just because more persons of color are voting now as the country grows more diverse doesn't mean that overly restrictive voting changes aren't suppressing the vote.
Not only is this confusing causation with correlation, but suppressing the vote also occurs when it becomes harder to do, not just when it is blocked entirely. The federal judge who blocked Texas' strict voter ID law because 600,000 to 800,000 citizens do not have easy access to the supporting documentation needed for the new identification requirements held that "a law that forces poorer citizens to choose between their wages and their franchise unquestionably denies or abridges their right to vote."
The Wall Street Journal editorial board falsely claimed that the Department of Justice is relying on outdated civil rights law in its current lawsuits against the voter suppression of Texas and North Carolina.
Baselessly claiming DOJ's efforts to block redundant and unnecessarily restrictive voter identification laws that discriminate on the basis of race are motivated by politics, the WSJ incorrectly claimed that DOJ was trying to "reverse" the Supreme Court's infamous Shelby County v. Holder decision. From the editorial:
For Eric Holder, American racial history is frozen in the 1960s. The Supreme Court ruled in June that a section of the 1965 Voting Rights Act is no longer justified due to racial progress, but the U.S. Attorney General has launched a campaign to undo the decision state-by-state. His latest target is North Carolina, which he seems to think is run from the grave by the early version of George Wallace.
The worst argument against such laws is that they must be racially motivated because there is so little evidence of voter fraud. Yet no less that former Justice Stevens said in his opinion in the Indiana case that "flagrant examples of such fraud in other parts of the country have been documented throughout this nation's history by respected historians and journalists, [and] that occasional examples have surfaced in recent years." Anyone who thinks voter fraud doesn't exist hasn't lived in Chicago or Texas, among other places.
It's telling that Mr. Holder prefers to file lawsuits rather than take up the Supreme Court's invitation to modernize the Voting Rights Act for current racial conditions. The Congressional Black Caucus has said it is working on a new formula for preclearance, but such legislative labor doesn't get the headlines that lawsuits against GOP-run states do.
The conservative wing of the Supreme Court gutted the Voting Rights Act in Shelby County when it overturned decades of precedent, ignored bipartisan congressional intent, and disregarded the text of the Fifteenth Amendment in order to dismantle the "preclearance" provisions of the VRA. These neutralized provisions - Sections 4 and 5 - required states with an engrained history of racially discriminatory voter suppression to "preclear" any subsequent election changes with DOJ or the courts before implementation.
Shelby County did not directly touch any other component of the VRA.
For example, despite the right-wing's obvious plan to drag this crown jewel of civil rights law back before the Supreme Court in the future, DOJ still has authority under the VRA to attempt to block voter suppression after legislative enactment, if no longer before. In addition to this after-the-fact enforcement powers under Section 2, DOJ also retains the ability to ask a court to once more place a jurisdiction shown to intentionally suppress the vote on the basis of race under the "preclearance" supervision of Section 3, similar but different to the process under Sections 4 and 5.
DOJ is seeking to block voter suppression in Texas and North Carolina using only those sections still intact after Shelby County. Contrary to the WSJ's claims, by litigating under Sections 2 and 3, DOJ is expressly not trying to "reverse" a decision that only affected Sections 4 and 5. It is, rather, making do with what is left of perhaps the nation's greatest civil rights achievement.
The Washington Post blithely suggested that Congress should "rewrite" the Voting Rights Act (VRA) rather than allow the Department of Justice to hold states accountable for voter suppression in federal court, seemingly oblivious to the government shutdown caused by the historic obstructionism of the GOP-controlled House of Representatives.
Although the conservative wing of the Supreme Court recently gutted significant protections for the right to vote in last summer's infamous Shelby County v. Holder, judges still have authority under the VRA to enjoin voter suppression after a discriminatory law is enacted. The Department of Justice is suing the states of Texas and North Carolina under these Section 2 powers, and if a court finds that the voter suppression attempted in either of these states was done with the intent to discriminate on the basis of race, Section 3 of the VRA could require these states to once again "pre-clear" their election changes.
In the middle of a Republican-caused government shutdown due to opposition to the Affordable Care Act, however, the Post opined that rather than sue states in court for clear violations of the VRA, it would be "easier and fairer" for Congress to "rewrite" those pre-clearance sections that Shelby County struck down. From the editorial:
EVER SINCE the Supreme Court gutted a key section of the 1965 Voting Rights Act, Attorney General Eric H. Holder's Justice Department has been trying to patch it, using the sections of the law that the court left in place to reconstitute the checks on discrimination that had existed for decades. The Justice Department's latest move, involving a challenge to odious new voting restrictions in North Carolina, demonstrates that Mr. Holder is committed to the effort. It also demonstrates why Congress, not the Obama administration, should be the branch of government offering the primary response to the court's ruling.
With a series of wins in cases such as North Carolina's, the Justice Department could reestablish the pre-clearance requirement in many places where it used to apply. The easier and fairer way to revive pre-clearance, however, would be for Congress to rewrite the formula for which places should be covered. The Supreme Court left lawmakers that latitude, and large bipartisan majorities in Congress historically have supported pre-clearance. If lawmakers want to get back to doing something productive, resuscitating the Voting Rights Act would be a good place to start.
Considering DOJ's obligations under the VRA, the Post's objection to legally holding states accountable for voter suppression would have been unnecessarily deferential to the legislative branch in any context. In the reality of a government shutdown, the Post's call that "[i]f lawmakers want to get back to doing something productive, resuscitating the Voting Rights Act would be a good place to start" is downright bizarre.
In an attempt to smear unrelated civil rights law by linking it to the tragic Navy Yard shootings, right-wing activist Hans von Spakovsky argued that background checks for arrests without convictions could stop gun violence.
Never one to miss an opportunity to shoehorn an attack on civil rights law into a different subject, widely discredited National Review contributor von Spakovsky used the disturbing mass murder committed by a veteran of color to criticize employment law that guards against unnecessary racial discrimination in hiring practices. From his recent op-ed in The Washington Times that claimed "Obama policy would have exempted the Navy Yard shooter from scrutiny":
But what if The Experts had actually turned up these criminal arrests for gun-related violence [in a background check] and refused to hire Alexis? If the company had done so, it might have violated the hiring policy the Obama administration is trying to force on private employers. It could have been accused of discrimination by the Equal Employment Opportunity Commission (EEOC), a federal agency controlled by Obama appointees.
In April 2012, the EEOC issued enforcement guidance severely restricting the use of criminal background checks by employers when hiring new employees. The EEOC claims that because blacks and Hispanics are arrested and convicted at higher rates than whites, the use of a criminal-background check will have a "disparate impact" on minorities and, therefore, violates Title VII of the Civil Rights Act of 1964.
Unfortunately, the terrible tragedy in the Navy Yard graphically illustrates why the Obama administration's push to force employers to stop using criminal background checks is not only legally wrong, but dangerous.
Rather, the EEOC is utilizing long-standing anti-discrimination law under Title VII of the Civil Rights Act that prohibits those employment or hiring policies that have an unjustified discriminatory effect on persons of color. Therefore, criminal background checks per se are perfectly acceptable if they are pertinent to the job at hand.
Recently, however, blanket employment screening has become so commonplace that it flags offenses that are not only minor, but also unnecessary for the occupation in question. Because the databases that background checks rely on have an alarmingly high number of false positives based on "incomplete or inaccurate information," and because communities of color disproportionately suffer from encounters with the criminal justice system, multiple reports indicate that this new trend is making the unemployment rate for persons of color worse.
The National Review Online smeared class action lawsuits in its attack on a recent report on forced arbitration by Public Citizen, the prominent consumer advocacy organization.
The conservative wing of the Supreme Court has been on a tear in recent years, issuing one big-business opinion after the other that strengthens corporate immunity against civil justice. Right-wing media have cheered this trend, especially those decisions that rewrite precedent to make it harder for consumers and small businesses to vindicate their rights. From NRO, which dismissed class actions as "a cash cow for trial lawyers [that] don't usually help consumers":
Earlier this month, Public Citizen released a report that praised the work of private consumer lawsuits to make parallel state enforcement efforts possible. The report cites the tobacco litigation and various insurance abuse cases, and calls for strictly limiting arbitration by, among other things, banning forced arbitration clauses in consumer and employment cases, the subject of the Arbitration Fairness Act. Not surprisingly, this report distorts the truth, which is that trial lawyers, not consumers, would benefit from such a radical campaign against arbitration.
But Public Citizen was not objecting to arbitration in general, rather to forced arbitration and class action bans. From the report, which examined how arbitration law too often disfavors state consumer protections, a posture that has allowed businesses to begin a "widespread practice of inserting forced arbitration clauses into consumer contracts":
These clauses require that any potential disputes must be settled through private arbitration. Consumers are harmed by these clauses because they are denied the opportunity to have their case heard in a neutral court of law that is subject to public oversight. In forced arbitration, the company selects the arbitration firm that will conduct the hearing, giving the arbitration firm a financial incentive to favor the business. Moreover, arbitration proceedings are often conducted in secret, may be adjudicated in a manner that does not follow the law, and frequently limit many common legal principles, including the use of discovery. Also, there is scant opportunity to appeal an arbitrator's ruling.
The Supreme Court's 2011 ruling in AT&T Mobility LLC v. Concepcion compounded the effects of [previous anti-consumer rulings] by permitting companies to insert language banning the use of class actions into arbitration clauses. Class action bans often have the practical effect of preventing consumers from seeking redress of any sort, whether in arbitration or in court, because the alleged harms to individual consumers often are not large enough to make it economically feasible to bring a case.
This is not a "radical" position and arbitration voluntarily entered into is not the issue. In addition to consumer advocates and the liberal Supreme Court justices who disagree with the anti-class action decisions NRO defends, even arbitrators have joined groups like Public Citizen in criticizing forced arbitration clauses combined with bans on class actions.
In his efforts to pretend a proposed state law enforcement bill in California was "extreme" and unconstitutional, Fox News host Bill O'Reilly accidentally explained why it was legal.
California is currently contemplating the TRUST Act, a new bill that would clearly delineate the responsibility of state enforcement officials when they participate in the federal Secure Communities program, a joint effort that processes immigration status information taken at the local level through national databases.
Even though O'Reilly correctly noted Secure Communities is a cooperative program between state and federal officials, he still erroneously insisted the TRUST Act "subvert[s] federal law" in an interview with the former head of Immigration and Customs Enforcement (ICE). From the September 25 edition of The O'Reilly Factor:
O'REILLY: Here is how extreme things are. A proposed new law in California would prevent -- prevent police from even cooperating with the federal government on illegal alien criminal cases. Democratic politicians in California obviously doing this to strengthen their base among immigrants from south of the border. Joining us now from Washington: Julie Myers Wood, former head of Immigration and Customs Enforcement. So obviously California is subverting federal law or am I wrong Ms. Wood?
O'REILLY: Shouldn't the attorney general though go in and say to California you can't do this. You can't not cooperate with federal people, ICE, when you have a criminal situation and if -- and we'll sue you if you continue this policy. Shouldn't the attorney general do that?
O'REILLY: But what are the odds of [Attorney General Eric] Holder doing that, you know the game in D.C. You know the players. What are the odds of the attorney general as you rightly pointed out did sue Arizona, same -- same issue. Your countermanding federal law, you can't do that. What are the odds of him saying the same thing to Jerry Brown and the people in California?
O'REILLY: All right. We're going to call the attorney general's office and see when the federal lawsuit will be filed against the state of California for failing to cooperate with federal officials.
But O'Reilly is flatly incorrect that the TRUST Act interacts with federal law in the same manner that the anti-immigrant Arizona law SB 1070 did.
The New York Post continued right-wing media fearmongering about the consequences of discontinuing unconstitutional policing methods and electing a Democratic mayor.
Leading up to the federal court decision that held the New York City Police Department (NYPD) unconstitutionally and systematically misapplied the common police tactic of stop-and-frisk, right-wing media repeatedly warned that following the law would send crime rates spiraling up.
Specifically, right-wing media argue that if the NYPD is forced to perform stop-and-frisk constitutionally like other jurisdictions, New York City will revert to its crime rates of the early 1990s, prior to the administrations of the last two Republican mayors. The editorial board of the Post continued this trend, adapting it as an argument against the election of the current Democratic candidate for mayor and prominent critic of the illegal application of stop-and-frisk, Bill De Blasio. From the editorial, which attacked The New York Times for pointing out its previous doomsaying was "nonsense":
The New York Times is doing the city a favor. An editorial Monday declared that New Yorkers need not worry about a return of the violence that ravaged Gotham in the pre-Bloomberg/Giuliani days. In so doing, the paper crystallized the competing messages of this vital election year.
On one side are those who believe there's nothing inevitable about the historically low crime levels New York enjoys today. This side believes that safe streets are the fruit of tough decisions taken by Mayors Giuliani and Bloomberg, and innovative tactics under Police Commissioners Bill Bratton and now Ray Kelly. This is the side of The Post, the police and mayoral candidate Joe Lhota.
On the other side are those who pretend we've solved this problem forever and the ugliness can never return. This side includes the Times and the man it seems likely to endorse for mayor, Bill "Tale of Two Cities" de Blasio.
That's what's at stake in this election. Back in the days when more than six people a day were killed in New York, versus about one a day today, even the Times worried that New Yorkers "think twice about where they can safely walk." The city felt like "a New Beirut."
Accompanying the Post editorial was a photograph of a man in police custody, with the following bizarre caption: "Here's a scene from your two cities, Bill: In July 1985, Mark Campbell, 26, was charged with second-degree murder for delivering a fatal karate chop to his girlfriend's 17-month-old son -- because the baby's crying kept him awake."
Of course, this tragic murder as described is utterly irrelevant to a discussion of stop-and-frisk tactics, which the Post itself described as a way "to go after bad guys, especially the ones carrying guns." Indeed, a simple Google search quickly reveals that shocking child murders - with or without guns - continued during the administrations of Republican mayors.
Media outlets are ramping up their pushback against a highly questionable PolitiFact Virginia analysis of the proposed elimination of no-fault divorce law supported by Ken Cuccinelli, the Republican candidate for governor of Virginia and favorite of "father's rights" groups.