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April 24, 2014

Schuette and America’s Future

By and

Our most recent paper suggested that Congress ban racial preferences and rein in the “disparate impact” approach to civil-rights enforcement. This week, the Supreme Court announced its decision in Schuette v. BAMN and gave a green light to the political branches if they decide to prohibit such discrimination. We hope that Congress — as well as state legislatures — will follow Michigan’s lead and ban racial preferences on the basis of skin color and national origin.

The Supreme Court’s decision makes it impossible for pro-preference forces to attack such legislation as unconstitutional. (Indeed, in his concurrence in Schuette, Justice Scalia remarked that the Constitution “barely — and only provisionally — permit[s]” racial preferences.) But of course they will still oppose it, calling it racist or suggesting that it shows indifference to racial discrimination. That, indeed, is how they responded to our paper suggesting a federal ban. Their arguments are as flimsy as the similar arguments the Court just rejected.

Consider, for example, the reaction in Slate and Media Matters to our article. To imply that indifference to racism motivates those who believe that everyone should be treated equally and that the government should not discriminate in favor of or against anyone based on race is pure demagoguery. Slate and Media Matters say we’re trampling on the ideals of the 1964 Civil Rights Act, but they are the ones who have forsaken those ideals.

Our critics are quite right that our two complaints are against (a) overt racial preferences and (b) the “disparate impact” approach to civil-rights enforcement. But they are wrong to assert that either of these complaints would, to quote Media Matters, “gut” the “core enforcement provisions” of the statute, let alone that it is “an attack on the 1964 Civil Rights Act itself,” as Slate puts it.

The 1964 Act did not use racial preferences. Indeed, it rejected them, by taking a race-neutral approach to civil-rights law, protecting members of all racial and ethnic groups — majority and minority alike — from racial discrimination. So it is simply not accurate to say, as Media Matters does, that the 1964 Act was “explicitly race-conscious.”

What’s more, the 1964 Act didn’t even use the disparate-impact approach. To be sure, the Supreme Court got that wrong in Griggs v. Duke Power Co., in its assessment of one part of the act (Title VII), but the best scholarship has debunked the Court’s interpretation. The Court itself began to have second thoughts and was moving away from this approach with a series of decisions in the late 1970s and 1980s, so that Congress amended Title VII in 1991 to codify for the first time the disparate-impact approach. Meanwhile, the Court rejected the disparate-impact approach for Title VI, and it has not adopted it for any other title in the 1964 Act that we know of.

Media Matters also brings up the 1965 Voting Rights Act, but that law’s key provision — Section 2 — likewise rejected a disparate-impact approach (it was amended, alas, in 1982). Indeed, the only part of either the 1964 or the 1965 statute that called for the disparate-impact approach is Section 5 of the 1965 Voting Rights Act — and, not surprisingly, its principal use became to ensure racially gerrymandered and segregated voting districts, flatly at odds with the desegregation ideals of the civil-rights movement. So the Court was wise to end this nonsense with its decision last year in Shelby County v. Holder.

Not only does the disparate-impact approach encourage racial discrimination, as we discussed in our article, it’s unnecessary. You don’t need disparate impact to target the intentionally discriminatory laws (such as phony “literacy tests”) that Slate points to. The Supreme Court has made clear that behavior in which, as Slate puts it, the intent is discriminatory but the discrimination is “achieved by neutral means” can be attacked as disparate treatment.

The fact that racists may be “too smart to broadcast their prejudice” (to quote Slate again) doesn’t mean that circumstantial evidence can’t successfully be used to catch them. Media Matters is wrong to suggest that winning a disparate-treatment case requires a “smoking gun” or paranormal mind-reading. These cases are brought and won all the time.

These articles attacking our position fundamentally misunderstand how the disparate-impact approach works. It is not a way to smoke out intentional discrimination (again, as we discuss in our article and as Justice Scalia discussed in the New Haven firefighters opinion that we cite), because it makes the proven absence of intentional discrimination irrelevant to liability.

The last part of the Slate piece appears to be an attempt to argue that racial preferences are essential to combat racism. This is not true. Congress certainly did not adopt this approach in the resolutely non-preferential approach it took in the 1964 Act. If it had embraced racial preferences, the Act would not have passed. So Slate’s argument is wrong factually and historically — and is also a nonstarter as a legal matter, since the Supreme Court has long rejected the “societal discrimination” rationale for the use of racial preferences.

Media Matters is likewise wrong in its suggestion that the Supreme Court views racial preferences as no big deal. To the contrary, the justices have long subjected such discrimination to “strict scrutiny” and, to the Left’s dismay, of course, have shown an increasing skepticism about politically correct racial discrimination — and rightly so.

So ending racial preferences and the disparate-impact approach to civil-rights enforcement would not gut the act or ignore its ideals: To the contrary, it would fulfill those ideals. Congress should act, and the states and state legislatures should act as well (as discussed in this other Heritage paper). The Supreme Court has given the go-ahead, and there’s no reason to wait.

Editor's Note: Roger Clegg co-authored this commentary 

 - Hans A. von Spakovsky is manager of the Election Law Reform Initiative and senior legal fellow in the Edwin Meese III Center for Legal and Judicial Studies at the Heritage Foundation.

 - Elizabeth H. Slattery is senior legal-policy analyst in the Meese Center.

Originally appeared in the National Review Online

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