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A misleading attack on Chief Justice Roberts

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In a speech this weekend, Attorney General Eric Holder, who once argued that Americans are a “nation of cowards” on matters of race, said that “the way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race.” But ironically, he himself engaged in misleading rhetoric that was anything but candid, by caricaturing and distorting what others have said about racial issues. For example, his speech falsely attributed words to Supreme Court Chief Justice John Roberts that Roberts never said.

In a “commencement speech at Morgan State University, a historically black college in Baltimore, on Saturday,” Holder claimed that “Chief Justice John Roberts has argued that the path to ending racial discrimination is to give less consideration to the issue of race altogether.” But Roberts never said any such thing, and Holder was dishonestly putting words in his mouth. As The Washington Post noted, this statement by Holder took “direct aim at the Chief Justice John G. Roberts Jr., who famously wrote in a 2007 opinion that ‘the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.’”

In short, Holder replaced Roberts’ actual admonition “to stop discriminating on the basis of race” with a quite different admonition to “give less consideration to the issue of race.” These are quite different things. Indeed, for an institution plagued by racism to “stop discriminating on the basis of race,” it may need to become vigilant about preventing such discrimination by racist employees, and focus more on racial problems and issues.

Thus, it is ironic that Holder claims that Americans are a “nation of cowards” who refuse to debate racial issues openly and honestly. Indeed, it looks like Holder himself may lacks the courage to address the actual arguments other people make on racial issues, instead falsely attributing to people arguments they never made, in order to make them look ridiculous and create the appearance that he has won the debate when in fact he has only debated a straw man.

Roberts’ admonition came in his 5-to-4 ruling striking down race-based school-assignment quotas in Seattle’s schools, in Parents Involved in Community Schools v. Seattle School District No. 1 (2007). Those racial quotas, which violated Title VI of the Civil Rights Act and the Constitution’s equal protection clause, prevented some blacks from attending certain schools, and some whites from attending other schools, and thus harmed both black and white students. For example, as George Will noted in December 2006, “This city’s school district decided in 2000 that because the son of Jill Kurfirst and the daughter of Winnie Bachwitz are white, they should be assigned to an inferior and distant high school. If they had not left the Seattle school system, this would have required them to rise at 5 a.m. in order to leave home by 5:30 a.m., alone and in the dark, to take the first of three buses, returning home between 8 p.m. and 9 p.m., with almost no time left for homework, family activities and adequate sleep.” Similarly, some black students were prevented from attending a school with a sought-after debate program.

Some defenders of these quotas argued that they helped remedy a legacy of discrimination against minorities. But the civil rights laws provide a judicial remedy for victims of racial discrimination, and that remedy isn’t racial preferences or quotas for a particular group, much less quotas like Seattle’s that harm both blacks and whites. Instead, the civil rights laws allow victims of discrimination to sue for compensatory (and sometimes punitive) damages for the discrimination they suffer, as well as an injunction banning the allegedly discriminatory practice, and attorney fees. Roberts’ admonition was simply a reminder that the way to end discrimination on the basis of race is to enforce well-established prohibitions on discrimination on the basis of race, not for the government to engage in racial discrimination itself by creating discriminatory quotas or preferences for racial groups.

I filed an amicus brief in that case on behalf of the Competitive Enterprise Institute, arguing that schools shouldn’t receive deference from the courts when they use race, pointing to the bizarre racial statements made by the Seattle Schools. Our brief pointed out that the Seattle Schools, on their website, had falsely claimed that “emphasizing individualism as opposed to a more collective ideology” constitutes “cultural racism,” that only whites can be racist, that it is racist to expect minorities to plan ahead the way white people do, and that colorblindness is bad. This sort of racist “consideration to the issue of race” can indeed be an obstacle to ending racial discrimination. Four of the nine Supreme Court justices cited Seattle’s wacky definitions of racism in the course of their opinions. Justice Thomas, for example, cited those definitions as an object lesson in why not to defer to school districts when they use race in student assignment, in footnote 30 of his opinion. Likewise, those definitions were cited in footnote 14 of the Court’s plurality opinion.

Roberts’ admonition was also mischaracterized by Justice Sonia Sotomayor in her recent dissent from the Supreme Court’s 6-to-2 ruling upholding Michigan’s ban on racial set-asides in government contracting and racial preferences in state college admissions and employment. (Her illogical, highly emotional dissent was praised by Eric Holder at the time.) We earlier explained why the Court’s decision to uphold the state’s voter-approved ban on using race in Schuette v. Coalition to Defend Affirmative Action (BAMN) was correct based on both precedent and logic. (It was also good news for taxpayers, since taxpayers of all races pay more when government contracts are doled out based on race, rather than awarded to the lowest bidder. Even fairly mild government affirmative action programs that do not impose racial quotas nevertheless impose substantial costs on taxpayers. For example, in the Domar Electric case, Los Angeles accepted a bid for almost $4 million to complete a contract rather than the lowest bid of approximately $3.3 million, at a cost to taxpayers of more than $650,000. The lowest bidder was rejected solely because it failed to engage in affirmative action in subcontracting. California’s Proposition 209 later limited such costly racial favoritism by banning racial preferences, voiding a number of state affirmative-action programs, and thus saving taxpayers millions of dollars.)

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