The Obama Admin’s Race-Based Double Standard – Results of a Politicized DOJ

By Hans Bader | November 1, 2016 | 10:30am EDT
U.S. Attorney General Loretta Lynch (left) and President Barack Hussein Obama (right) (AP Photo/Carolyn Kaster)

The Obama administration has repeatedly turned a blind eye to racial discrimination and harassment when the victims are white. One recent example is its indifference to discrimination by racist left-wing protesters at the University of California at Berkeley. Their misconduct was captured on video on October 21, and nationally publicized by the Washington Times, Reason Magazine, Fox News, and the Daily Caller.

As the Daily Caller noted:

“A video of Friday’s protest shows a large group of protesters preventing white students from passing over a bridge while allowing access to students of color. In addition to blocking access to Berkeley’s Sather Gate, a key bridge on the route to many classes, the wall of protesters also prevented white students from studying in the Student Union and stopped traffic at the main intersection in the front of campus.”

As Fox News observed, the protesters were “harassing white students trying to study, barring their path across a key bridge while allowing students of color safe passage. The protest, which began last Friday, blocked Berkeley’s Sather Gate, disrupted studying students in the Student Union.”

Berkeley did nothing about this, even though campus police were right nearby when it happened. The Obama administration also said nothing about this, even though it has often taken note of far more trivial racial matters that offend minority protesters, such as Halloween costumes that protesters claim “appropriate” non-white cultures.

Yale protesters demanded the removal of a lecturer who defended harmless Halloween costumes such as a “blonde ­haired child’s wanting to be Mulan for a day.” The protesters also childishly “spat on” people attending a free-speech conference. Yet, “White House press secretary Josh Earnest … praised the protesters.”

When white fraternity members at the University of Oklahoma were caught on video engaged in a vile racist chant, and were expelled by University President David Boren, “the White House responded” within less than a day, “praising David Boren’s actions.” It did so, even though civil-libertarians and law professors such as Eugene Volokh, Glenn Reynolds, and Erwin Chemerinsky concluded that the chant was protected by the First Amendment, and even though the chant occurred off campus and thus did not constitute illegal racial harassment under Title VI of the Civil Rights Act. Federal courts have ruled that off-campus conduct does not violate laws against harassment on campus, such as Title VI’s sister statute Title IX, in cases such as Roe v. Saint Louis University (2014).

Yet the Obama administration has been completely silent about the racial harassment against whites at Berkeley, even though Title VI of the Civil Rights Act prohibits harassment that results in students being “excluded from participation in” any campus “program or activity,” and holds colleges liable for being deliberately indifferent to such harassment (as Berkeley has in fact been). Even if no one has complained to the government about this harassment, this is not an excuse for the Obama administration to ignore it.

If the harassment were aimed at minorities, the Obama administration would not only denounce it, but might even begin investigating the college at which it occurred.

The Education Department’s Office for Civil Rights sometimes investigates harassment on campus based on press reports. For example, it found Michigan State University liable under Title IX for not investigating a sexual assault case faster after it learned about a criminal complaint alleging sexual assault from a news story. The Obama administration investigated Michigan State, even though local prosecutors declined to prosecute based on the absence of evidence. It turned out after investigation that the sexual-assault claim was false. OCR perversely faulted Michigan State for not investigating the false complaint fast enough, even though the complainant didn’t want a college investigation at all (only a criminal investigation). OCR also suggested the University might have to offer the false accuser academic “remedies.”

The Obama administration’s silence about what happened at Berkeley is not excused by the fact that the victims of the harassment were white. Racial harassment can violate federal civil rights laws, even when the victims are white. A unanimous Supreme Court ruling in McDonald v. Santa Fe Trail Transportation Company (1976), held that all races — including whites – are covered by the civil-rights laws and constitutional guarantees of equal protection. That ruling, which allowed white employees to challenge their race-based firing, was authored by the Supreme Court’s first black justice, Thurgood Marshall. Civil rights laws forbid racial harassment and violence aimed at whites. For example, federal appeals courts have ruled that employers are liable for racial harassment they allow minorities to commit against whites, in cases like Bowen v. Missouri Department of Social Services (2002) and Huckabay v. Moore (1998).

Nor is there a “diversity” excuse for racial or sexual harassment. For example, a judge refused to dismiss a discriminatory harassment lawsuit brought by white men who were subject to an insulting 3-day “diversity training” seminar, in Hartman v. Pena (1995).

The Obama administration has an egregious double standard about hate crimes and racial violence against whites. When the victim is black or Hispanic, they prosecute the alleged offender. When the victim is white, they don’t. This violates constitutional equal-protection guarantees.

As a former Justice Department civil-rights lawyer observed, the Criminal Section of the Justice Department’s Civil Rights Division has consistently done nothing when the victim of a hate crime is white:

“[W]hen the victims of racial violence are white, nothing happens.

“When a mob of blacks savagely attacked random whites at the Wisconsin State Fair earlier this summer, the Section did nothing. When a similar riot occurred at the Iowa State Fair in August 2010 — where bands of black teens organized a ‘beat whitey night’ — the Section once again did nothing. Last month, still another flash mob of blacks beating whites took place in Philadelphia, yet the Section did nothing. The same is true near Pittsburgh and in Ohio … there is a pervasive hostility in this administration to bringing cases on behalf of white victims.”

By contrast, if the victim is non-white — like an undocumented immigrant from Mexico attacked in Pennsylvania — the Justice Department prosecutes; in the Pennsylvania case it obtained guilty verdicts in federal court against two white teenagers who had previously been found not guilty of hate crimes and most other charges in Pennsylvania state court.

The Obama administration’s race-based double standard is itself the result of a disturbingly politicized Justice Department, which hires lawyers based on ideology, rather than competence. For example, the Obama Justice Department hired 113 overtly liberal lawyers and absolutely zero non-political or non-liberal lawyers for 113  positions in a branch of its Civil Rights Division.

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.


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