Backwards on civil rights

The current Congress is working hand in glove with the Obama administration to take us ever further backwards on civil rights. This week’s example is section 342 of the Dodd-Frank bill.
The bill generally grants the federal government ever greater power over the financial services industry. As Diana Furchtgott-Roth noted last week, section 342 of the bill requires all federal agencies governed by the bill establish an Office of Minority and Women Inclusion responsible for “all matters of the agency relating to diversity in management, employment, and business activities.”
Among other things, these offices must “develop standards” for “assessing the diversity policies and practices of entities regulated by the agency.” That means the whole financial industry. Financial regulation and affirmative action all in one. It is a “major power grab.”
The U.S. Civil Rights Commission is not standing idly by. Yesterday four individual commissioners — Peter Kirsanow, Gail Heriot, Ashley Taylor and Todd Gaziano — sent a letter to Senate leaders opposing the bill’s affirmative action provisions. It is not an official Commission later, since the commissioners sought to get the letter out before the bill is voted upon this week. The letter was signed by four of the eight commissioners. The more interesting paragraphs in the letter sent by the four commissioners run this way:

The potential for abuse should be obvious, but sadly sometimes it is not to those who are unfamiliar with the workings of governmental and corporate bureaucracies. All too often, when bureaucrats are charged with the worthy task of preventing race or gender discrimination, they in fact do precisely the opposite: Consciously or unconsciously, they require discrimination by setting overly optimistic goals that can only be fulfilled by discriminating in favor the groups the goals are supposed to benefit. Those who are regulated by, or do business with, a federal agency are understandably eager to please that agency. When the agency says, “Jump!,” they know the financially smart response is, “How high?,” not “We’re concerned that your diversity goals cannot be achieved without tilting the playing field in favor of one group or another–something we believe the law and the Constitution forbid.”
In this case, the bureaucrats are not even being asked to prevent discrimination, but to ensure “fair inclusion.” The likelihood that it will in fact promote discrimination is overwhelming.
For these reasons alone, we would oppose Section 342 and recommend its deletion from the Dodd-Frank bill. But there is another, equally important aspect of Section 342 that concerns us. Some legislators have evidently come to think of women and minorities as just another constituency whose leaders must be brought on board with incentives when major legislation is being considered. The notion that legislation should include “a little something” for everyone is troubling in any context, but it is especially troubling in the context of race and gender, given the requirements of the Fifth and Fourteenth Amendments to the Constitution.

This is another area where Obama and the Democrats stand athwart public opinion. Yesterday’s Rasmussen poll on affirmative action showed only 32 percent of those polled supporting “affirmative action,” while 46 percent opposed it.
The question asked appears to have been something straightforward like, “Do you support affirmative action?” If so, it shows racial and gender preferences are getting even less popular. They’ve always been massively unpopular when the question asked is clear. But a vague question like “Do you support affirmative action?” used to get a plurality.
A Gallup poll released the day after the Supreme Court’s Grutter and Gratz decisions in 2003, for example, showed a bare plurality (49 percent) supporting “affirmative action” broadly (presumably including such non-controversial aspects as outreach); a distinction was made between that and preferential standards. A strong majority (69 percent) said that college applicants “should be admitted solely on the basis of merit, even if that results in few minority students being admitted.” Only 27 percent took the position that an applicant’s race should be taken into consideration “even if that meant admitting some minority students who otherwise would not be admitted.”
A different poll, worded somewhat differently, conducted by the Washington Post in 2001, showed 94 percent of whites and 86 percent of blacks agreeing that hiring, promotions, and college admissions should be based “strictly on merit and qualifications other than race/ethnicity.” That poll may overstate the opposition to racial preferences, though that is something that is not easy to do.
The great victory of the civil rights movement led by Martin Luther King, Jr., was one of moral persuasion: King persuaded Americans that it was wrong and deeply un-American to treat citizens differently based on the color of their skin. That victory of moral persuasion was translated into the Civil Rights Act of 1964, the law that prohibited discrimination on the basis of race, ethnicity, or sex in wide areas of American life. It’s been downhill more or less ever since, and the Dodd-Frank bill is geared to contribute mightily to the descent when it is passed this week.

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