National Review Online contributor John Fund used anecdotal evidence of voter fraud and specious legal analysis to continue to advocate for oppressive voter identification laws.
On January 17, a Pennsylvania judge ruled that the state's voter ID law was unconstitutional under the state constitution because "hundreds of thousands of qualified voters ... lack compliant ID," and that the state had failed to ease the burdens associated with obtaining one. As The Nation recently reported, "getting a voter ID in Pennsylvania was a bureaucratic nightmare" after the statute went into effect because "[t]here are 9,300 polling places in the state, but only seventy-one DMV offices."
But Fund apparently didn't find this scenario all that nightmarish. In a recent editorial, he dismissed the number of voters without appropriate ID as "inflated" and argued that the law should still be rescued by the state legislature:
In 2008, the U.S. Supreme Court upheld on a 6-to-3 vote the constitutionality of laws requiring voter ID at the polls. Justice John Paul Stevens, one of the left-of-center judges on the Court, wrote the opinion in a case involving Indiana's voter-ID law: He found that the Court could not "conclude that the statute imposes 'excessively burdensome requirements' on any class of voters."
But our Constitution decentralizes our election procedures over 13,000 counties and towns, and states themselves are in charge of writing voter-ID laws should they choose to do so. Some do it better than others.
Last Friday, Judge Bernard McGinley of the Pennsylvania Commonwealth Court found that his state's voter-ID law violated Pennsylvania's constitution because the manner in which it was implemented placed an unreasonable burden on voters. The law, passed in 2012, had been blocked from taking effect while the court case against it ground forward. McGinley's decision is likely to be appealed to the Pennsylvania Supreme Court. Or the legislature could pass a new version of the law that would answer the judge's objections.
McGinley concluded that the law had been implemented in a sloppy, haphazard way and that the state had not done enough to help provide IDs to voters who lacked one.
When Pennsylvania's voter-ID law is either appealed or rewritten, let's hope that the state does a better job debunking the inflated estimates that hundreds of thousands of Pennsylvanians lacked an ID.
The state should also emphasize that even when voters show up at the polling place without an ID, they can vote on a provisional ballot. The state will count that ballot if the voter mails, faxes, or e-mails a copy of acceptable ID within six days of the election. If a person lacks the money to obtain the background documents necessary to acquire a voter ID, he can sign an affidavit attesting to that fact, after which his vote will be counted without further questions.
Fund's claim that the Supreme Court upheld the constitutionality of strict voter ID laws is misleading -- the case he references is Crawford v. Marion County Election Board, which challenged an Indiana voter ID law specifically, not the constitutionality of ID requirements in general. In the Pennsylvania case, the judge made sure to note that Crawford was not particularly relevant to his analysis, because the underlying facts that supported the legal challenges were so dissimilar. But Fund ignores this important distinction between the two cases in favor of his preferred narrative: that discriminatory voter ID laws are awesome.
From the January 22 edition of Fox News' The Five:
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The National Review Online decried new federal guidelines that could reduce the number of needless arrests and incarceration of minority students in public schools.
On January 8, the Department of Justice (DOJ) and the Department of Education (DOE) issued new, optional guidelines to help public schools develop non-discriminatory disciplinary policies. Right-wing media were quick to accuse the Obama administration of playing the "race card" because the guidelines addressed the fact that minority students are far more likely to be disciplined -- often unfairly and excessively -- for nonviolent and minor disruptions in school. Because more and more schools rely on armed police officers known as "school resource officers" to handle behavioral problems, many students of color end up getting arrested and incarcerated.
NRO has previously called the new DOJ guidelines "disturbing." But in a January 16 editorial, the site went further, complaining that the guidelines were an overblown response to "spectral racism" and were based on "arbitrary evidence" (emphasis added):
The Obama administration is no stranger to trying to micromanage complex, intractable problems from Washington. But using the Civil Rights Act to direct schools' disciplinary practices might be its most foolhardy idea yet. Beginning in 2010, the Department of Education, led by the occasionally sensible Arne Duncan, announced that it intended to pursue vigorously civil-rights violations in the American school system. That's led to a number of DOE investigations of various school districts with racially disparate discipline rates.
The feds contend, as an aside, that discrimination in discipline shows up in studies when controlling for poverty and other factors, but the evidence for this contention is ludicrously weak. Federal civil-rights investigators don't have to publicly disclose the grounds they've used to initiate investigations of racial discrimination, but their work so far leans as heavily as the new guidelines do on evidence of disparate statistical impact, rather than on indications of real bias and disparate treatment. They will not admit that they rely on such arbitrary evidence, since there is little statutory justification in the Civil Rights Act for such a disparate-impact case, but the objection is clear enough: Certain minorities are disciplined at higher rates than whites are, so racism must be at work.
When such a simple heuristic is applied, schools will feel even more pressure than they already do to adopt a simple solution: try to discipline all races, regardless of behavior, at the same rate. This might mean arbitrarily increasing rates of punishment for whites or, much more likely, reducing them for blacks and Hispanics, disadvantaging their classmates of all races who'd like peaceful classrooms.
No one should be surprised by the Obama administration's zeal for alleging racial discrimination when it isn't there ... But it is still shocking that the federal government is effectively encouraging schools to judge students on the color of their skin rather than the content of their character.
The entire point of the DOJ's guidelines is to encourage schools to stop mistreating students based on the color of their skin, so it's odd that NRO would conclude the exact opposite.
Fox News joined other right-wing media and misrepresented new federal guidelines designed to reduce the disproportionate number of minority students who are unfairly suspended, expelled, or arrested for disruptive behavior in school.
On January 8, the Department of Education and the Department of Justice issued new guidelines to help public schools "administer student discipline without discriminating on the basis of race, color, or national origin." The guidelines, which are not mandatory, are in response to statistics and analyses that suggest that students of color are significantly more likely to be punished than their similarly-situated white classmates. This means that students who are already disadvantaged will lose out on crucial school time not only due to unfairly punitive disciplinary measures, like suspension, expulsion, or even arrest, but unfortunately due to racial discrimination as well.
In a January 13 segment on The Kelly File, host Megyn Kelly and her "Power Panel" agreed that "zero tolerance" policies are overbroad and ineffective. But Kelly still erroneously insisted that kids "cannot be suspended" under the new guidelines and that they "suggest[ed] punishment should be based on race. " Her panelists, who included both a Fox legal analyst and a blogger for the right-wing Washington Free Beacon, agreed, arguing that the guidelines are "handcuffing our educators" and inappropriately "bringing race into it":
Frequent Fox guest and former Reagan economic advisor Art Laffer argued for the abolishment of the minimum wage for some workers, describing the law as the "black teenage unemployment act." He added that the federal requirement "makes no sense whatsoever."
Laffer, the so-called father of trickle-down economics, appeared on the January 8 edition of Fox News' Happening Now to discuss the possible extension of recently-expired unemployment benefits for the long-term unemployed. When host Jenna Lee asked Laffer and American Enterprise Institute's Michael Strain about other ways to improve the economy, Laffer recommended doing away with the minimum wage for some workers, saying that "honestly" the requirement is the "black teenage unemployment act." Strain agreed, and suggested lowering the minimum wage "for the long-term unemployed" to $4 an hour.
JENNA LEE: One of the things you both agree on is maybe looking at minimum wage, and Art, you have an idea for minimum wage that you think could encourage hiring and it involves state government so what is that plan?
LAFFER: Yeah, well the minimum wage makes no sense whatsoever to me. I mean, honestly, it's just the teenage -- black teenage unemployment act and this is the very groups that we need to have jobs not be put out of work because of the minimum wage so I'm really very much in favor of at least for teenagers getting rid of the minimum wage so we can bring them back into the labor force, get them the skills they need to continue being productive members of our society for years and years. I mean, that's the way I'd go on minimum wage.
STRAIN: I certainly agree with Art that we should lower the minimum wage for teenagers, I also think we should lower the minimum wage for the long-term unemployed. You know, right now, if you're a worker and you apply for a job and you've been unemployed for 7 months, the firm may say 'hey, you know, I wonder if there is something about this person maybe previous firms have seen something that I'm not seeing -- I'm not going to hire them.' And the reason that, well a reason that a firm might feel that way is because the government says that you have to take a $7.25 per hour risk on that worker. So if we lower that down to, say, $4 an hour, then the risk is much less to the firm, firms are going to be more likely to hire these workers. Now, I think if we do that, for workers that are heads of households and that are working full time, we don't want them living in poverty, so, if we're going to lower the minimum wage for those workers then we need to have some sort of a wage subsidy or an expansion of the earned income tax credit or something to make up the difference.
LEE: I'm going to need a calculator.
Viewers who spent 2013 absorbed in Fox News might be under the impression that an all-out race war has erupted across the nation this year, thanks to the network's coverage of everything from voter fraud to Santa Claus echoing one common theme: white folks are being victimized in Obama's America.
GEORGE ZIMMERMAN ON TRIAL
Fox became obsessed with black crime rates in the summer of 2013, when Floridian George Zimmerman went on trial for the 2012 murder of African-American teenager Trayvon Martin, whom Zimmerman shot and killed while he was walking home from a convenience store. Zimmerman, identified as white Hispanic, alleged that he shot Martin in self-defense, and was not subsequently arrested or charged with any crime until a significant public outcry made the story national news.
Fox immediately began running defense for Zimmerman in what became a red meat story for the network -- an opportunity to justify right-wing gun culture and stand your ground laws, stoke fears about the dangers of black youth, and paint white-on-black crime as exceedingly rare and usually justified while black crime is exploding.
In 2012, a year before Zimmerman's trial, Fox's Sean Hannity was already trying to connect the case to the New Black Panther Party, while Geraldo Rivera blamed Martin for his own death because Martin was wearing a hoodie. But it was after Zimmerman was found not guilty in 2013 -- and after President Obama weighed in on that outcome -- that Fox's race-baiting sunk to new lows.
Fox News Sunday host Chris Wallace spent an entire segment pushing misleading black crime statistics in order to ask whether Obama's remarks about Trayvon Martin were deflecting from the real problem -- black violence. Popular host Bill O'Reilly echoed the deceptive statistics, prompting MSNBC's Chris Hayes to observe that everything O'Reilly was saying on race is "easily debunked with about 20 minutes of Googling."
Weeks later, O'Reilly would revisit the Trayvon Martin tragedy, saying Martin died because he looked "how gangstas look."
"TRAYVON MARTIN IN REVERSE": CHRISTOPHER LANE SHOT DEAD IN OKLAHOMA
In August of 2013, three teens -- one white, two black -- shot and killed Christopher Lane, a white Australian attending school in Oklahoma, while he was out for a jog.
There was no evidence that the murder was anything but cold-hearted and random - officials investigating and prosecuting the homicide repeatedly rejected suggestions that race played a factor in the crime.
Nevertheless, conservative media immediately began covering the story with a racial lens. Radio host Rush Limbaugh called the murder, "Trayvon Martin in reverse, only worse," and imagined that the teenagers "got bored and said, 'Let's go shoot a white guy!'"
Fox News followed suit. On the Record host van Susteren invited regular Fox guest Pat Buchanan -- who frequently espouses white nationalist ideology -- onto her show to discuss the murder. Buchanan baselessly opined, "My guess ... is that it is racial." Over on The Five, host Eric Bolling channeled this sentiment, saying the murder was "likely motivated by race." Other Fox News segments in the following days questioned why the mainstream media was "ignoring the race issue" in the story, and pundits repeatedly asked why civil rights leaders weren't publicly weighing in on the murder -- a not-so-subtle attempt to tie the crime thematically to the racially-charged killing of Trayvon Martin.
But it was Buchanan who followed up his conjecture with an illustration of where the baseless speculation about racial motivations in crime can lead -- a manipulation of crime statistics to fit preconceived stereotypes about race and crime. Buchanan argued that Lane's death was just the latest symptom of a "black on white" crime spree in America, a conclusion that activist Tim Wise noted was "beyond the scope of the rational mind to comprehend."
SMEARING THE STRUGGLE FOR VOTING RIGHTS
When Fox wasn't fear mongering about black crime, it was busy supporting laws that disenfranchise minorities.
Fox host Brian Kilmeade insisted that college admissions offices employ a "quota" system based on race, despite the fact that racial quotas in education have been illegal since 1978.
On the November 20 edition of "Fox & Friends," Kilmeade interviewed former college counselor Lacy Crawford about her book Early Decision. In response to a story about a parent who lied about her son's race on a college application to improve his chances for admission, Kilmeade proclaimed it was "because schools have quotas!" This has not been true since 1978, when the Supreme Court ruled in Regents of the University of California v. Bakke that it was unconstitutional for institutions of higher education to reserve a certain number of seats for students of color. Appearing uncomfortable, Crawford didn't bother to correct Kilmeade, saying only, "Well, 'quota' is a complicated word."
Immediately after President Barack Obama nominated the highly-qualified and widely respected Debo Adegbile to be the next assistant attorney general for civil rights at the Department of Justice, right-wing media attacked this top lawyer of the NAACP Legal Defense Fund for purportedly being a "racialist."
Writing on an obscure right-wing blog, J. Christian Adams, a frequent Fox News guest who served in the highly politicized and disgraced Bush-era DOJ and "whose claim to fame as a federal lawyer seems to be his penchant for accusing black people of discriminating against whites," accused Adegbile of "racialis[m]" and the venerable NAACP Legal Defense Fund of a "radical racial agenda." From a November 14 post on Pajamas Media:
Adegbile hails from the NAACP Legal Defense Fund, an organization that has pushed a radical racial agenda including attacks on election integrity measures, opposition to criminal background checks for hiring, and racial hiring quotas for state and local governments.
Adegbile's name was mentioned as a possible nominee to the federal bench. Because of his advocacy for racialist policies, such a nomination would face serious confirmation difficulties. But in Eric Holder's Justice Department, nakedly racialist policies are standard fare, and Adegbile will fit right in.
This is an an-your-face nomination. This is the White House sending a message to Republicans and conservatives that the radical racial policies of the Justice Department will continue full speed ahead.
[I]n the Obama Justice Department, the law is not as important as the cause. And with Adegbile, the cause is racialist.
In another context, the venue and content of this thinly-veiled insinuation of so-called reverse racism could be easily ignored. Unfortunately, on the topic of executive and judicial nominees of the current president, Adams' attack is disturbingly similar to the same sort of race-baiting that jumps from little-read blogs to prominent right-wing platforms like Fox News, the editorial page of The Wall Street Journal, National Review Online, and even the mouths of GOP congressmen engaged in the ongoing blanket filibustering of the president's diverse nominees.
Accusing select presidential nominees of racialism or anti-white bias is a tired page of right-wing media's playbook against those who litigate and uphold longstanding civil rights precedent, a body of law that tends to help most those systematically disadvantaged by racism. This rant has been directed with more or less subtlety at Labor Secretary Thomas Perez (who previously led the DOJ's Civil Rights Division), Supreme Court Justice Sonia Sotomayor, and Attorney General Eric Holder.
Assumedly, these charges have some sort of salience with those unfamiliar with American history and basic civil rights law.
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.
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.
From the October 30 of Fox News' The Kelly File:
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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 National Review Online continues to misinform on a civil rights case in front of the Supreme Court, and its right-wing talking points on the supposed harm of affirmative action to students of color have now found their way into oral arguments by the conservative justices.
In an October 15 blog post discussing Schuette v. Coalition to Defend Affirmative Action, frequent NRO contributor Roger Clegg and attorney Joshua P. Thompson mischaracterized race-conscious admissions policies as a "racial preference" program for the unqualified. NRO has a long record of misinforming on affirmative action in general and Schuette in particular. Clegg and Thompson continued that trend in their piece, which recommended that the Court uphold a Michigan state constitutional amendment that effectively banned affirmative action by selectively making it more difficult for minorities to participate in the political process, a clear violation of decades-old precedent that prohibits this type of political restructuring. The NRO not only advocated for the conservatives on the Court to strike down these civil rights precedents, but to also reach beyond the four corners of the case and decide legal questions that aren't even at issue:
Today the U.S. Supreme Court heard oral argument in Schuette v. BAMN, a case in which a federal appellate court held -- astonishingly -- that Michigan voters somehow violated the U.S. Constitution's Equal Protection Clause by endorsing equal treatment for everyone regardless of race or sex.
At issue is Proposal 2 (the Michigan Civil Rights Initiative), a 2006 ballot measure that amended the state constitution to provide that state and local government agencies (including public universities) "shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting."
[T]he Court should take this opportunity to make some amends to those who have been fighting for the principle of colorblind law but have been thwarted by bad judicial decisions. It can do so by reaffirming the strong presumption against any government use of racial and ethnic preferences -- not only in education, but also in contracting and employment, the two other arenas in which they are commonly found, and which are also addressed by Proposal 2.
The lower-court decision here complained that Proposal 2 makes it harder for some groups to lobby for preferential treatment. But the Equal Protection Clause is in the Constitution precisely because racial preference is not to be left to everyday politics, academic or otherwise. The United States has seen institutionalized discrimination in favor of whites be replaced with institutionalized discrimination against whites (and Asians) in less than a generation, and racial spoils will always be attractive to many politicians and other state and local actors.
It is not at all clear that Proposal 2 hurts African Americans (especially in light of the mismatch problem it removes -- that is, the fact that admitting students with significantly lower qualifications simply sets them up for failure since they are more likely to flunk out, drop out, get poor grades, and switch majors); and it clearly helps other minorities, like Asians, who typically are at the short end of preferences. And the logic of the Sixth Circuit's decision would also make it illegal to ban discrimination and preferential treatment through simple legislation, which would call into question a colorblind law like the 1964 Civil Rights Act, as well as state-constitutional civil-service rules.
Of concern is how the conservative misinformation advanced by NRO (and elsewhere by conservative Wall Street Journal columnist James Taranto) cropped up in the Schuette oral arguments. For example, in addition to the mistaken insistence that the U.S. Constituton is colorblind, the NRO also repeated the theory that those who get into elite positions through affirmative action, such as Justices Antonin Scalia and Sonia Sotomayor, are possibly doomed to failure. This "mismatch" argument as applied to higher education admissions, a favorite of right-wing media, has been widely debunked, but was still advanced at oral arguments by Michigan solicitor general John Bursch - and echoed favorably by both Chief Justice John Roberts and Justice Scalia.
Before the Supreme Court even heard oral arguments in Schuette v. Coalition to Defend Affirmative Action, potentially the nation's next major civil rights decision, The Wall Street Journal was already spreading misinformation about the case and the issues at stake.
In an October 14 editorial, The Wall Street Journal mislabeled the affirmative action ban challenged by the American Civil Liberties Union and the NAACP Legal Defense and Educational Fund, miscounted the number of justices that will decide Schuette (Justice Elena Kagan recused herself, having previously worked on the case), and mistakenly conflated a political restructuring case with a different strand of affirmative action cases:
Does it violate the U.S. Constitution's ban on racial discrimination for a state to ban racial discrimination? Most Americans would think not, but that's essentially the bizarre question before the Supreme Court on Tuesday as it considers a legal challenge to a 2006 Michigan referendum.
In Schuette v. Coalition to Defend Affirmative Action, the plaintiffs claim that Michigan violated the U.S. Constitution's Equal Protection Clause when 58% of Michigan voters supported Proposition 2 [sic], which amended the state constitution to prohibit discriminating by race in education, government contracts or hiring.
The Coalition for Affirmative Action argued that Prop 2 disproportionately burdened minorities in education. Their odd logic is that while advocates of, say, alumni legacy preferences would only need to lobby a school's admissions officials, advocates of race preferences under Prop 2 would have to amend the state constitution. So not discriminating by race discriminates by race -- got it?
It's only fair that the Supreme Court fix this legal mess that it did so much to create. Michigan's 2006 referendum was a response to the High Court's misguided 2003 decision in Grutter v. Bollinger that allowed schools to consider race as a factor in admissions for the purpose of diversity. Proposition 2 [sic] was the political response from a citizenry that still reveres the principle of color-blind opportunity.
The Schuette case ought to be an easy call for the Justices, and the ruling should be 9-0. Given the fraught politics of race, even on the High Court, it may end up being 5-4. But the failure to overturn the Sixth Circuit would enshrine in the law the concept that American voters can't choose to outlaw discrimination on the basis of race. Lincoln and Frederick Douglass would turn in their graves, if they didn't leap right out of them.
What the WSJ calls the "odd logic" of the plaintiffs isn't odd at all. The legal argument of the ACLU/NAACP (joined by multiple legal scholars, including Harvard Law Professor Laurence Tribe and University of California Irvine School of Law Dean Erwin Chemerinsky) is, in fact, solidly in line with Supreme Court precedent. The WSJ has assumed that, because Schuette is tangentially related to affirmative action, it must be an opportunity for the justices to revisit the holding in Grutter -- but the cases just aren't the same.
On October 15, the Supreme Court will hear oral arguments in Schuette v. Coalition to Defend Affirmative Action, a case that challenges a 2006 ballot initiative in Michigan that amended the state's constitution to prevent state universities from using race or sex as one of many equal factors in admissions. Although proponents of what was formerly known as Proposal 2 say this resulting affirmative action ban is consistent with the law, it appears to be specifically prohibited by the "political restructuring" doctrine of the Supreme Court.