It’s odd to defend clear-cut violations of the law and then complain that the law isn’t being enforced harshly enough. But that’s what the Leadership Conference on Civil and Human Rights and a gaggle of other left-wing groups recently did.
They fault the acting head of the Education Department’s Office for Civil Rights (OCR), Candice Jackson, for having objected in the past to clear-cut violations of the civil rights laws that she is now charged with enforcing, such as Title VI of the Civil Rights Act.
They cite a recent Pro Publica article, noting that Jackson once objected to universities’ limiting class sections to members of particular races—a practice they euphemistically refer to as “equal opportunity/affirmative action policies”:
“In past writings, Ms. Jackson appeared to be ignorant of the history and continued presence of race and sex discrimination, as evidenced by her claims that equal opportunity/affirmative action policies discriminate against White students.”
These complaints were contained in April 24th joint letters to Secretary of Education Betsy DeVos and to Senators. Lamar Alexander (R-TN) and Patty Murray (D-WA) from the Leadership Conference on Civil Rights, et al.
These letters defend practices that the courts have ruled illegal, and every current U.S. Supreme Court justice would find illegal. It is illegal to have race-based classes, which no court ruling has ever suggested is valid under an affirmative-action or diversity rationale. Civil rights laws do not contain exceptions for particular races, much less countenance segregation. Title VI says that “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”
Title VI, which OCR is charged with enforcing, has been construed by courts as banning race-based scholarships reserved for a particular race. (Podberesky v. Kirwan, 38 F.3d 147 (4th Cir. 1994) (striking down race-specific scholarship for blacks under the Constitution and Title VI)).
In 1976, the Supreme Court unanimously ruled that whites are protected by the civil-rights laws against racial discrimination. (McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273 (1976) (interpreting Title VII of the Civil Rights Act to forbid race-based firings of whites)).
The Supreme Court has struck down other race-specific programs by lopsided margins. (See, e.g., Rice v. Cayetano, 528 U.S. 495 (2000) (7-to-2 Supreme Court ruling invalidating race-based election reserved for Native Hawaiians)). While the Supreme Court has allowed race to be used as a “plus factor” in college admissions to promote integration or diversity, it has never allowed racial segregation, blanket exclusion, or race-specific classes or sections.
Ironically, after attacking Jackson for complaining about discrimination, these groups lecture Education Secretary DeVos about her need to “demonstrate a commitment to core American values of equal opportunity, nondiscrimination, and … the rule of law,” including enforcement of “schools’ responsibilities under Title IX.”
For example, an October 20, 2015 letter urged the Education Department to pressure colleges to ban anonymous social media applications such as Yik Yak, after some students used them to say things that were sexist, racist, or intimidating. This letter was signed by the Leadership Conference on Civil Rights and many of the other groups that also signed the April 24th letters to Secretary DeVos and to Sens. Alexander and Murray. Their 2015 letter urged the blocking or “geo-fencing of anonymous social media applications that are used to” make bigoted or otherwise “harassing” remarks, and “barring the use of campus wi-fi to view or post to these applications.”
Such demands for nanny-state bans under Title IX and Title VI were foolish and counterproductive, and had no statutory basis, as even liberal writers noted. As Amanda Hess of Slate pointed out, it was ironic that:
“Feminists and civil rights groups are trying to get universities to block the very app that gives marginalized students a voice on campus. … The app [Yik Yak] is massively and broadly popular among American college students, including female students, LGBTQ students, and students of color. … Yik Yak is an essential outlet for many college students who are adjusting to a new community and exploring their own identities ... Students routinely use Yik Yak to discuss experiences with mental illness or same-sex attraction or other intimate subjects they don’t feel comfortable announcing on the quad.”
These censorship demands were, as I noted in the Chronicle of Higher Education (quoting Justice Felix Frankfurter) like “burning the house to roast the pig.” I also cited UCLA law professor Eugene Volokh’s related commentary in the Washington Post that “correctly described [the anti-Yik Yak groups] as a ‘national coalition in favor of campus censorship.’” Contrary to what these demands suggested, “There is no racism or sexism exception to the First Amendment on campus, as court rulings like Dambrot v. Central Michigan University (1995) make clear.”
These same groups have also defended Education Department rules imposed under the Obama administration without notice and comment, in violation of the Administrative Procedure Act, that micromanage college discipline and ignore Supreme Court rulings limiting Title IX liability.
Hans Bader practices law in Washington, D.C. After studying economics and history at the University of Virginia and law at Harvard, he practiced civil-rights, international-trade, and constitutional law.