National Review Online is marking the 50th anniversary of the Civil Rights Act by calling on Congress to abolish its protections against racial discrimination.
On April 10, President Obama spoke at the Lyndon B. Johnson Presidential Library to honor the former president's work to pass and sign the Civil Rights Act of 1964, legislation that Obama explained was "as fundamental to our conception of ourselves and our democracy as the Constitution and the Bill of Rights." He added, "that's why I'm standing here today -- because of those efforts, because of that legacy," before warning that "history travels not only forwards; history can travel backwards, history can travel sideways. And securing the gains this country has made requires the vigilance of its citizens."
Instead of joining the president and the rest of America in celebrating this historic law that sought to push back against institutional discrimination and guard against future equal protection violations, an April 15 NRO column by Roger Clegg, Hans von Spakovsky, and Elizabeth Slattery called for Congress to gut key provisions of the Civil Rights Act, as well as the Voting Rights Act of 1965. Their proposal is rooted in the fact that these laws -- in recognition of the fact that racial discrimination in this country has been practiced against those who are not white for centuries -- are explicitly race-conscious and have "been expanded, however, through agency interpretation and activist court rulings to include 'disparate impact.'"
Rather than embrace decades of federal law, these NRO contributors instead prefer an ahistorical and so-called colorblind approach, where "provisions that might be read to authorize preferences or discrimination are hereby repealed or amended to authorize only consideration of factors other than race, color, ethnicity, or national origin." From the authors' opposition to fifty years of civil rights precedent on behalf of historical victims of racial discrimination:
The federal government wittingly and unwittingly endorses a great deal of racial discrimination in America. A 2011 report by the Congressional Research Service catalogued literally hundreds of government-wide and agency-specific set-aside and preference programs and grants throughout the entire executive branch that amount to some form of racial discrimination.
The "disparate impact" approach to civil-rights enforcement results in race-based preferential treatment -- often intentionally so. Eliminating such claims is therefore another way to help curb the use of racial and ethnic preferences.
In brief, an action that results in racially disproportionate results is considered to have an illegal disparate impact, even if the action is neutral on its face, in its intent, and in its application. This is not racial discrimination by any reasonable definition, and it forces employers, landlords, schools, and others either to discard legitimate criteria and selection procedures (for example, a physical or written test for firefighters or police officers) or to avoid racial disproportions by hiring, leasing, or disciplining (or designing tests and other selection criteria) with an eye to skin color, or both. The Obama administration loves this approach, alas.
After the conservative justices gutted the Voting Rights Act in Shelby County v. Holder, right-wing media complained that criticisms of the legal challenge were overblown because other provisions of the VRA remain intact to fight voter suppression. But now some of those same right-wing media figures have begun to flip-flop on that position, arguing that another crucial component of the VRA is unconstitutional as well.
National Review Online is pointing to instances of trouble at Texas polling places as proof that the state's overwhelmingly stringent voter ID law is "a good thing."
NRO contributors Roger Clegg and Hans von Spakovsky argued that because four prominent, white Texans were eventually able to vote after experiencing problems with their identification, complaints about the voter ID law are "hysterical." They went on to claim that a New York Times article that characterized the new ID law as "mak[ing] a dent at the polls" is overblown.
From Clegg and von Spakovsky's November 9 post:
A New York Times headline Thursday declared: "Texas' Stringent Voter ID Law Makes a Dent at the Polls." A careful reading of the article will leave many readers scratching their heads about that title.
The article begins by noting that three prominent Texans -- state judge Sandra Watts, state senator Wendy Davis, and state attorney general Greg Abbott -- all had photo IDs that did not quite match their names on official voter rolls, and so all had to sign affidavits before they could vote. But ... they all could and did vote.
Jim Wright -- another Texan, whom the Times helpfully identifies as a former U.S. Speaker of the House -- had an expired driver's license, and so he had to produce a birth certificate. But ... he also voted.
So, when all is said and done, where's the "dent"?
It's worth noting that these four voter-ID "victims" are hardly the poor, minority voters that the Left asserts are targeted by these laws. To the contrary, all four are white and quite prominent, one a Republican. They not only got to vote, they were alerted to discrepancies in their voter registrations that they can now get corrected.
This is the new Jim Crow?
The post went on to conclude that "there was really no problem after all" and that "there apparently are not large numbers of Texas voters who lack identification."
Evidently, the fact that one in 10 registered voters in Texas lacks valid identification is of no great concern to NRO. Although Texas will provide "election identification certificates" to voters free of charge, voters must provide proof of citizenship and identity in order to get one. The documentation required to obtain a certificate -- such as a U.S. passport -- is generally not free.
Affirmative action policies that will come before the Supreme Court in the upcoming Fisher v. University of Texas case have long been the target of right-wing misinformation that distort the benefits of diversity in higher education. Contrary to the conservative narrative in the media, these admissions processes serve important national interests by promoting equal opportunity and are based on long-standing law.
In a post criticizing leading American companies' support for the diversity principle in an upcoming Supreme Court case, National Review Online contributor Roger Clegg mischaracterized the nature of the companies' support for diversity, and incorrectly implied it is race-centric in violation of the Constitution. But as the amicus brief for these Fortune 100 companies argues, the pursuit of diversity in higher education is not only important to the nation's economic success, it is also constitutionally permissible.
In October, the Court will hear Fisher v. University of Texas, the latest high-profile civil rights case brought by a rejected applicant challenging a school's race-conscious admissions process. The opponents are asking the Court to not only strike down the specific admissions policy at the University of Texas, but also to reverse Grutter v. Bollinger, the Court's 2003 case that confirmed state consideration of race or ethnicity in higher education admissions -- as one factor among many -- is permissible to achieve the goal of student body diversity.
Clegg mischaracterized the brief filed in this case on behalf of corporations ranging from Wal-Mart and Halliburton, to Microsoft and Starbucks, that instead urges the Court to "reaffirm its holding in Grutter that the conscious pursuit of diversity in the admissions decisions of institutions of higher education - including diversity based upon race, religion, culture, economic background, and other factors - is a compelling state interest."