Fox News treated itself to a victory lap after several Senate Democrats joined with the Republican conference and blocked the nomination of civil rights litigator Debo Adegbile, President Obama's highly-qualified pick to head the Civil Rights Division of the Department of Justice (DOJ).
On March 5, the Senate procedural vote that would have allowed a confirmation vote on Adegbile's nomination failed, after right-wing media spent months lying about his background with racially charged attacks, even publishing an offensive caricature of Adegbile that was condemned by the nation's leading civil rights groups for invoking "the racist iconography of late 19th century America designed to dehumanize and stereotype African Americans." Outlets like Fox News continued to distort Adegbile's record in the run-up to the vote despite these denouncements, and despite the fact that Adegbile is a mainstream nominee who is regarded as one of the preeminent civil rights experts of his generation by a wide spectrum of authorities, including law enforcement executives and the American Bar Association.
After the vote, Fox host Bret Baier was quick to suggest that Senate Democrats who voted in favor of Adegbile could pay a penalty in the upcoming midterm elections. Baier went on to spread further misinformation about the nominee, falsely insinuating that he was part of an effort to overturn a murderer's conviction:
James O'Keefe, a right-wing performance artist known for his undercover videos that supposedly "expose" progressive "fraud," has released a new video falsely accusing conservative Rep. Jim Sensenbrenner (R-WI) of "excluding whites" from protection under his new Voting Rights Amendment Act (VRAA), a distortion of this bipartisan bill that has already been repeated in the National Review Online.
O'Keefe's new video shows him mysteriously dressed in camouflage, dancing to New Order's "Round and Round," and ultimately "confronting" Sensenbrenner at a town hall meeting about supposedly alarming anti-white language in the VRAA. Sensenbrenner, as he has in the past, began working on both sides of the aisle on this new VRA legislation last year, after the Supreme Court gutted crucial voter suppression protections in Shelby County v. Holder.
In the video, O'Keefe lectures Sensenbrenner on his own bill, claiming that "[i]n the legislation, it seems to contain language that explicitly removes white people from the protections of the Voting Rights Act." Sensenbrenner interrupts O'Keefe to correctly point out that the law "does not do that. There is nothing targeting people by race in the Voting Rights Act." O'Keefe eventually accuses Sensenbrenner of "doing the work of [U.S. Attorney General] Eric Holder and the race-hustlers with this language in the bill."
From the moment Debo Adegbile was nominated to the most recent smear in the Washington Examiner, right-wing media have made clear that their objection to President Obama's pick to head the Civil Rights Division of the Department of Justice (DOJ) is that he is one of the preeminent civil rights attorneys of his generation.
Paradoxical? Only if you believe in civil rights precedent and the idea that civil rights experts should be the ones bringing civil rights cases.
Right-wing media, apparently, believe in none of that.
Byron York's attempt in the Examiner to tenuously link Adegbile with guidance from the Equal Employment Opportunity Commission was just another example of right-wing media's concern that Adegbile might do his job a little too well. Resorting to invoking right-wing media's favorite civil rights bogeyman of the long-established legal doctrine for establishing impermissible racial discrimination from unjustified racial effects, York accused Adegbile of "embrac[ing]" the EEOC's "crazy" use of disparate impact precedent. From the March 3 column:
It's not unusual for businesses to conduct a check before hiring new employees. If the check uncovers that the applicant has, say, a felony conviction in his past -- well, that can put a quick end to the application process.
But Obama's Equal Employment Opportunity Commission has ruled that the use of background checks in hiring is racially discriminatory.
Hearing that, many employers might say: This is crazy. There are companies that will reject a job candidate because he posted something embarrassing on his Facebook page, and the Obama administration is warning businesses they'll be in trouble if they don't hire convicted felons?
Of course a business, after a background check, might well choose to hire a felon. But that is the employer's decision -- not the Obama administration's.
At the moment, EEOC "guidance" does not have the force of law, no matter the threats from top EEOC officials. That's where Debo Adegbile comes in. When he was with the NAACP, Adegbile praised the commission's guidelines. Now, if he becomes the assistant attorney general for civil rights, he will have the power to pursue the same or similar policies.
In written questions, Republican Sen. Chuck Grassley asked Adegbile whether he would, if confirmed, "take action to abridge or eliminate an employer's ability to perform criminal background checks on potential employees." Adegbile embraced the EEOC position and suggested it would guide his own actions in the Justice Department. "If employers do perform background checks, the EEOC has released guidance on the subject," he told Grassley.
But York is stretching in this failed attempt to land a new hit on Adegbile.
In contrast to significant coverage on CNN and MSNBC, a search of Fox News transcripts indicates the network has yet to address the recent desecration of a statue at The University of Mississippi which commemorates the integration of "Ole Miss," despite the network's previous attacks on desegregation law.
Earlier this month, a noose and a confederate flag were found on the Ole Miss campus, draped over a statue of James Meredith -- the first African-American student to enroll at the school. A group of white fraternity brothers are suspected in the vandalism, and the students could face federal hate crime charges. But a search of network transcripts on Nexis suggests that Fox has failed to report on the story at all -- despite having plenty to say in the past about "axing affirmative action" in favor of "color blindness."
Right-wing media's response to recent challenges to affirmative action policies -- most recently from Michigan and Texas -- has been to unequivocally support the gutting of these equal opportunity admissions policies, which have strengthened diversity on campuses for the benefit of everyone. In discussing affirmative action, right-wing outlets have been prone to favorably refer to conservative Chief Justice John Roberts' overly-simplistic suggestion that "the way to stop discrimination on the basis of race is to stop discriminating on the basis of race," when they weren't otherwise mangling the case law.
Lost in this conservative reporting is how a lack of diversity can lead to racial isolation for students of all colors and can contribute to racially-charged incidents of ignorance and hate on campus. Fox News, in particular, has had no qualms about misrepresenting the constitutionality of the diversity principle at the core of current affirmative action programs, which have been so crucial to ensuring that students and future leaders of color are not a rarity in the American educational experience. Their failure to report on the vandalism at Ole Miss unfortunately continues that trend.
In its continued opposition to the Voting Rights Act (VRA) and a proposed amendment to this historic law, The Wall Street Journal published a misleading op-ed by Hans von Spakovsky, an unreliable contributor to the National Review Online.
The op-ed of von Spakovsky, a right-wing activist who has called the "modern 'civil rights' movement" indistinguishable from "discriminators and segregationists of prior generations" and whose attempts to fearmonger about "virtually non-existent" voter fraud have been repeatedly discredited, followed a WSJ editorial that compared the bipartisan attempts of Congress to update the VRA with that of "Jim Crow era Southerners."
Although this new effort to strengthen the VRA through the Voting Rights Amendment Act of 2014 has prominent Republican support, von Spakovsky claimed "[t]his bill really isn't about the [Supreme Court's recent Shelby County v. Holder] decision. It is about having the federal government manipulate election rules to propagate racial gerrymandering and guarantee success for Democratic candidates." From the WSJ op-ed, which defended the conservative justices' gutting of the VRA in Shelby County and smeared the subsequent bipartisan efforts to repair the damage:
Before Shelby County, Section 5 of the Voting Rights Act required certain states to get "preclearance" from the federal government before making any voting changes. But the Supreme Court ruled that the formula to determine which jurisdictions were covered was unconstitutional because it was based on 40-year-old turnout data that did not reflect contemporary conditions. Census Bureau data show that black-voter turnout is on a par with or exceeds that of white voters in many of the formerly covered states and is higher than the rest of the country. We simply don't need Section 5 anymore.
In Shelby County, a radical break from precedent that has been described by experts as "on a par with the Court's odious Dred Scott and Plessy decisions and other utterly lamentable expressions of judicial indifference to the ugly realities of racial life in America," the bitterly divided Supreme Court struck at the heart of the VRA's efficacy by dismantling its "preclearance" process.
Even as the conservatives did so, however, Chief Justice John Roberts explicitly told Congress to fix this formula that requires covered jurisdictions with a history of racial discrimination to submit election changes for federal review before implementation. Contrary to von Spakovsky's strange assertion that "this bill really isn't about" Shelby County and is "an attempt to circumvent" the decision, this new bipartisan legislation is actually a direct response to Roberts' invitation to Congress to "draft another formula based on current conditions."
Admittedly, this new formula is more complex than von Spakovsky's preferred method of determining voter suppression by "turnout data," a confusion between correlation and causation that has been described as a rudimentary failure of "Statistics 101." Rather, Section 5 of the VRA imposes the preclearance process on jurisdictions with an incorrigible track record of suppressing votes based on race, and the formula to determine this discrimination has been changed in the new legislation to incorporate a comprehensive and rolling 15-year record.
The claim of the op-ed that the old formula led to "unwarranted objections" on the part of the Department of Justice toward alleged voter suppression is also inaccurate; this preclearance mechanism has been extremely effective at stopping racially discriminatory election changes. In fact, the two cases that von Spakovsky highlights both involved Section 5 successes.
Abandoning any pretense at understanding civil rights precedent or the bipartisan-supported Voting Rights Act (VRA), The Wall Street Journal condemned as "racial mischief" Congress' recent attempt to update this historic law pursuant to the Supreme Court's recent and explicit instructions.
In last year's bitterly split opinion of Shelby County v. Holder, the conservative justices of the Supreme Court gutted the most effective part of the Voting Rights Act - the "preclearance" formula by which jurisdictions with an incorrigible record of voter suppression must submit election changes to federal review before implementation. In his majority opinion, Chief Justice John Roberts invited Congress to "draft another formula based on current conditions."
On January 16, Congress did just that and submitted bipartisan legislation to update the previous formula, which itself was an overwhelmingly bipartisan effort signed into law by former President George W. Bush. In a February 3 editorial, however, the WSJ declared this legislation comparable to the efforts of "Jim Crow era Southerners" and declared "Congress should let it die":
Never underestimate Congress's ability for racial mischief. In the Jim Crow era Southerners blocked civil-rights progress. Now, 50 years after the Civil Rights Act of 1964, the liberal goal is to give national politicians more power to play racial politics in a few unfavored states.
Democrats and the strange bedfellow of Wisconsin Republican James Sensenbrenner have introduced a bill to revise Section 4(b) of the 1965 Voting Rights Act that the Supreme Court struck down last year. Chief Justice John Roberts wrote that the Act's coverage formula no longer made sense in light of current racial realities, and the new proposal isn't much better.
The good news is that the bill, sponsored by Democratic Rep. John Conyers and Senator Pat Leahy and endorsed in his State of the Union by President Obama, specifically exempts voter ID laws from the actions that could be counted as a demerit against the state's voting-rights record. That's a repudiation of Attorney General Eric Holder's politically motivated campaign against voter ID, and perhaps that's why Mr. Sensenbrenner came on board.
But that concession isn't worth the broader political intrusion that the new proposal would allow. The Voting Rights Act's current provisions still provide ample federal enforcement when local politicians limit minority rights. Federal preclearance was an extraordinary exception to the Constitution's command of equal treatment under the law, and the country's racial progress shows it is no longer needed. Congress should let it die.
The WSJ may be puzzled, but there is nothing "strange" about the fact that conservative Rep. James Sensenbrenner (R-WI) is leading Republican support for the latest renewal of the VRA. Support for the VRA and its preclearance mechanism - including the formula for determining covered jurisdictions - has historically been strongly bipartisan.
Sensenbrenner was the GOP's legislative leader the last time the VRA was reauthorized in 2006, when Congress passed updates to the preclearance formula by majorities of 98-0 in the Senate and 390-33 in the House. As former President Ronald Reagan had done before him with the 1982 reauthorization of the VRA (another bipartisan effort, also involving Sensenbrenner), Bush publicly and proudly signed into law the 2006 preclearance mechanism that Republicans (many still in Congress) overwhelmingly supported. The current bill is specifically crafted to repeat such long-standing bipartisan support, and House Majority Leader Eric Cantor has stated that his "experience with John Lewis in Selma earlier this year was a profound experience that demonstrated the fortitude it took to advance civil rights and ensure equal protection for all ... I'm hopeful Congress will put politics aside, as we did on that trip, and find a responsible path forward that ensures that the sacred obligation of voting in this country remains protected."
The WSJ not only botches civil rights law history, it also botches the substance of the new amendment.
The media has extensively reported on the Republican National Committee's decision to boycott MSNBC following an offensive tweet for which the network subsequently apologized. But they've spent far less attention on the fact that the RNC denounced MSNBC while on Fox News -- a network that has frequently aired offensive and derogatory comments.
A day after civil rights organizations asked right-wing media to curb their misinformation and racially charged rhetoric, Fox News rejoined other conservative outlets in the smear campaign against Debo Adegbile, senior counsel to the Senate Judiciary Committee and President Obama's highly-regarded pick to head the Department of Justice's Civil Rights Division.
In a January 31 report posted to FoxNews.com, legal correspondent Shannon Bream contributed to a post that cited mysterious "critics" of Adegbile's supposed "outside the mainstream" approach to the law. The report did not mention that the criminal defense work he did to overturn an unconstitutional death sentence on appeal has been commended by the American Bar Association, members of the U.S. Supreme Court Bar, and the National Organization of Black Law Enforcement Executives (NOBLE). From FoxNews.com:
Adegbile has been described by critics as "radical," "dangerous" and "outside the mainstream."
Obama nominated Adegbile to head the Justice Department's Civil Rights Division.
However, he is now facing increased criticism for his role in getting convicted cop-killer Mumia Abu-Jamal's death sentence overturned during his time as a practicing attorney with the NAACP Legal Defense and Educational Fund.
Abu-Jamal was convicted in 1981 of killing Philadelphia police officer Daniel Faulkner.
Maureen Faulkner says she's "outraged" by Obama's decision to nominate Adegbile to the post.
Maureen Faulkner isn't the only one casting doubt on the nomination.
The Fraternal Order of Police recently sent a letter to Obama opposing Adgebile's possible appointment.
"This nomination can be interpreted in only one way: it is a thumb in the eye of our nation's law enforcement officers," Chuck Canterbury, president of the police group, wrote in a letter addressed to Obama.
In the wake of a smear campaign of "race-baiting and dog whistle politics" against Debo Adegbile, President Obama's highly-qualified nominee to head the Civil Rights Division of the Department of Justice, The Leadership Conference on Civil and Human Rights has formally called on right-wing media to raise the level of discourse and abandon their efforts at "character assassination" and "racially charged rhetoric."
On January 23, conservative newspaper The Washington Times ran an extremely offensive caricature attacking Adegbile. The caricature was a reference to Adegbile's successful appellate representation of a convicted murderer whose death sentence was twice confirmed to be unconstitutional. Adegbile's work on that case as one of the NAACP Legal Defense Fund's top lawyers has been called "consistent with the finest tradition of this country's legal profession" by the American Bar Association.
The Times' caricature, on the other hand, referred to his nomination as "a slap in every policeman's face," a reference to the victim of Adegbile's former client.
The Leadership Conference -- a coalition of 200 of the nation's leading civil rights organizations -- responded with a statement calling the caricature "reminiscent of the racist iconography of the late 19th century designed to dehumanize and stereotype African Americans," a condemnation of the right-wing media attacks against Adegbile. The January 30 statement also called on the Times and Fox News specifically to "tone down this rhetoric and have a reasoned and substantive conversation on this important nomination":
Until today, we've ignored the race-baiting and dog whistle politics that form the basis of opposition to Debo Adegbile's nomination to head the Civil Rights Division at the Department of Justice. We've disregarded the distortions about Adegbile's efforts to ensure that all Americans can live and work free of discrimination.
But this buffoonish and racially tinged caricature is beyond the pale of acceptable mainstream debate. This cartoon is reminiscent of the racist iconography of late 19th century America designed to dehumanize and stereotype African Americans who were only beginning to throw off the shackles of chattel slavery.
Debo Adegbile is one of the preeminent civil rights lawyers of his generation with broad and bipartisan support for his confirmation. He's the son of immigrants who worked his way through law school to defend American democracy in the U.S. Supreme Court. But to the Washington Times, Fox News, and others, he's a buffoonish caricature and a "cop killer." The American Bar Association has debunked this lie, and wrapping it in racially charged rhetoric does not make it any more true.
This type of character assassination harkens back to the baseless and unrelenting attacks by Senator Joseph McCarthy during the 1950s McCarthy hearings, which led counsel Joseph Welch to ask Senator McCarthy, "Have you no sense of decency, sir, at long last? Have you left no sense of decency?"
The head of the civil rights division is a vitally important office charged with defending the rights of all under the U.S. Constitution. There is no longer room for the dog whistle politics of yesteryear in a 21st century debate about an extremely well-qualified nominee to an important position such as this. We're calling on all of Adegbile's critics to tone down this rhetoric and have a reasoned and substantive conversation on this important nomination.
Fox News' Sean Hannity sharply criticized MSNBC for an offensive tweet aimed at conservatives by MSNBC's Twitter account that drew a threat of boycott from Republican officials. But Hannity's demagoguery of MSNBC hid his own network's extensive history of offensive commentary.
On January 30, Republican National Committee (RNC) chairman Reince Priebus announced a boycott of MSNBC by RNC officials after the network posted an offensive tweet, which was later deleted, which stated "Maybe the rightwing will hate it, but everyone else will go awww: the adorable new #Cheerios ad w/ biracial family." After Priebus demanded an apology and corrective action from MSNBC President Phil Griffin, he apologized for the tweet and fired the employee responsible for writing it later that day.
That night, Hannity hosted Priebus, who criticized MSNBC for its "intolerance" but credited MSNBC's president for quickly responding to his concerns. During the interview, Hannity aired a montage of controversial clips of MSNBC personalities that spurred other apologies, telling Priebus: "You've shown a lot of patience up until this point. ... Let's play a little montage for you and remind you of some of the things that were said even prior to this incident."
But this selective outrage hides a history of inflammatory rhetoric and race baiting by Fox News. Prominent among Fox's numerous examples is former host Glenn Beck calling President Obama a "racist" who has "a deep-seated hatred for white people or the white culture" in July 2009. In contrast to how MSNBC handled this offensive tweet, Beck's statement was defended by Hannity himself, by Rupert Murdoch, the CEO of Fox's parent company, and according to a new book, Fox News CEO Roger Ailes privately agreed with Beck.
Right-wing media continue to attack former senior counsel to the Senate Judiciary Committee Debo Adegbile, President Obama's highly-qualified nominee to head the Department of Justice's Civil Rights Division, with baseless smears and race-baiting.
Following the lead of an ongoing right-wing misinformation campaign against this former top lawyer for the NAACP Legal Defense Fund, The Washington Times advanced the accusation that Adegbile's nomination is somehow offensive to police because he once worked on the twice-successful appellate appeal of the unconstitutional death sentence of a convicted murderer. Adegbile's former client remains imprisoned for life. Immediately reposted by right-wing blogger J. Christian Adams, who began the smears against Adegbile, the Times captioned its disturbing caricature of Adegbile with: "Obama's choice represents a slap in every policeman's face."
The caricature does not appear in the online edition of the Times.
Unlike The Washington Times, the American Bar Association has called Adegbile's representation of a criminal defendant's constitutional rights "consistent with the finest tradition of this country's legal profession." Moreover, the National Organization of Black Law Enforcement Executives has also lent its support to Adegbile's nomination, calling him "well qualified" and the smears on his character "troubling":
We believe that Mr. Adegbile's record of achievement is impressive, and he is well qualified for the position. Additionally, he has demonstrated a respect for the fundamental rights of all people under our constitution to have legal representation no matter how heinous the offense. We are confident in his ability to bring a balanced and ethical perspective into his role as head of the Civil Rights Division.
The attacks on Mr. Adegbile's character for upholding one's constitutional rights are troubling. To take away one's right to a proper defense because of the act committed, is against the constitutional oath that we as law enforcement officials have sworn to protect and defend. His distinguished record of achievement has centered on racial justice, constitutional rights and equal opportunity; and he should be judged on his entire body of work and not one chapter.
We empathize with the surviving families and those touched by the despicable crimes that were committed; and we understand how painful it is for them to see a conviction sustained at trial and a death sentence imposed only to be lost on appeal because of an error. But these are the laws that we have taken an oath to uphold both popular and unpopular. Civil Rights cases are some of the most controversial and complex cases that our courts face. They are based on interpretations of the US Constitution and affect the rights afforded to all of our citizens and some non-citizens. We expect the leadership of the Civil Rights Division to possess the courage to move forward on those cases that warrant it, and, after careful and thoughtful consideration have the ability to reject those cases that don't meet the legal threshold.
We believe that Mr. Debo Adegbile possesses the unique qualifications needed to lead the Civil Rights Division. He is balanced and ethical, and has demonstrated a duty to honor our Constitution through his bravery to ensure the proper representation of even an individual who has committed the most reprehensible of offenses. Our Constitution is what makes America great and has served as a model for other nations. Therefore, it is our recommendation that Mr. Debo Adegbile be quickly confirmed as the Assistant Attorney General of the United States Department of Justice, Civil Rights Division. [National Organization of Black Law Enforcement Executives, 1/24/13]
Right-wing media have sunk to new lows in smears against President Barack Obama's nominee to head the Department of Justice's Civil Rights Division, former NAACP Legal Defense Fund (LDF) top official Debo Adegbile, a highly-qualified and widely praised civil rights litigator who has been senior counsel to the Senate Judiciary Committee.
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.