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Appeals Judge Slams Critical Race Theory: “Prohibiting racial discrimination means we must be blind to race”

Appeals Judge Slams Critical Race Theory: “Prohibiting racial discrimination means we must be blind to race”

“Equity” and other CRT approaches will eventually have a judicial reckoning. 5th Circuit Judge James C. Ho concurring opinion: “Citizens may fairly wonder how officials can condemn race-neutral policies as racist and defend explicitly race-conscious programs as inclusive.”

https://commons.wikimedia.org/wiki/File:JudgeJamesHo.jpg Public Domain

Critical Race Theory as implemented under euphemisms of such as “equity” and “antiracism” in education and elsewhere has not yet had it’s judicial reckoning. That day will come, hopefully sooner rather than later. Racism in the name of “equity” is still racism, and if implemented in practice in the workplace, government, or education, it’s still illegal except in the narrowest of circumstances.

We previously covered a decision by Massachusetts U.S. District Court Judge William Young dismissing a case challenging the Boston public school “Zip Code Quota Plan.” Judge Young noted that “equity” was illegal (emphasis added):

Without question, some statements [of school board officials] raise cause for concern. The statement within the Equity Planning Tool, for example, about a hard pivot away from equality and towards equity simply has no support in the Equal Protection jurisprudence of the Supreme Court. See, e.g., Feeney, 442 U.S. at 273 (“[T]he Fourteenth Amendment guarantees equal laws, not equal results.”). Had this Plan unconstitutionally substituted equality of result for equality of opportunity along racial lines, this Court would not hesitate to strike it down.

But that is not what happened here.

It turned out key text messages possibly showing racial motivation were concealed from the court, and Judge Young withdrew the opinion. But his point about equality versus equity remains valid although it is what we call dictum, an opinion not central to the decision.

Similar approaches have motivated Courts to enjoin Biden administration policies explicitly advantaging non-whites over whites:

A similar point was just made by 5th Circuit Judge James C. Ho, a likely Supreme Court nominee when Republicans regain the White House. The case involved dismissal of a claim of racial discrimination under the Civil Rights Act of 1964 arising out of the handling of property by federal and local agencies in a mostly minority neighborhood. The court mostly upheld dismissal on the ground that no intentional discrimination was alleged, but reversed and remanded for consideration of certain administrative claims.

In a concurring opinion (starting at page 22 of the pdf.) Judge Ho wrote in part (emphasis added):

I concur in the judgment and in all but Section III.A of Judge Haynes’s opinion. With respect to the intentional discrimination claim, we all agree that this case turns on geography, not race. With respect to the disparate impact claim, we all agree that remand is appropriate. I write separately to explain why I share Judge Jones’s concerns about unelected agency officials usurping Congress’s authority when it comes to disparate impact theory.

Congress enacted Title VI of the Civil Rights Act of 1964 to prohibit intentional racial discrimination—not to restrict neutral policies untainted by racial intent that happen to lead to racially disproportionate outcomes. See 42 U.S.C. § 2000d; Alexander v. Sandoval, 532 U.S. 275, 280–81 (2001) (“[§ 2000d] prohibits only intentional discrimination,” not “activities that have a disparate impact on racial groups”).

There’s a big difference between prohibiting racial discrimination and endorsing disparate impact theory. See, e.g., William N. Eskridge, Jr., Dynamic Statutory Interpretation 78 (1994) (disparate impact is “a significant leap away from” intentional racial discrimination). It’s the difference between securing equality of opportunity regardless of race and guaranteeing equality of outcome based on race. It’s the difference between color blindness and critical race theory. Compare Martin Luther King, Jr., I Have A Dream: Address to the March on Washington for Jobs and Freedom (Aug. 28, 1963) (“I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.”), with Ibram X. Kendi, How to Be an Anti-Racist 18 (2019) (“A racist policy is any measure that produces or sustains racial inequity between racial groups.”); see also ‘When I See Racial Disparities, I See Racism.’ Discussing Race, Gender and Mobility, N.Y. Times (Mar. 27, 2018), available at https://www.nytimes.com/interactive/2018/03/27/upshot/readerquestions-about-race-gender-and-mobility.html?smid=tw-share.

Prohibiting racial discrimination means we must be blind to race. Disparate impact theory requires the opposite: It forces us to look at race—to check for racial imbalance and then decide what steps must be taken to
advance some people at the expense of others based on their race. But racial balancing is, of course, “patently unconstitutional.” Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 723 (2007). Accordingly, “serious constitutional questions . . . might arise” if “[disparate impact] liability were imposed based solely on a showing of a statistical disparity.” Tex. Dep’t of Hous. & Cmty. Affs. v. Inclusive Cmtys. Project, Inc., 576 U.S. 519, 540 (2015). See also Ricci v. DeStefano, 557 U.S.557, 594–96 (2009) (Scalia, J., concurring) (same).

***

So these are not frivolous concerns of discrimination that we’re talking about here. In fact, for disparate impact advocates, requiring discrimination may not be a problem—it may be the whole point. To quote one leading critical race theorist, “[t]he only remedy to past discrimination is present discrimination,” and “[t]he only remedy to present discrimination is future discrimination.” Kendi, supra, at 19.

***

It’s said that the road to hell is paved with good intentions. That’s why we have laws on the books, like Title VI, that simply forbid the “sordid business” of “divvying us up by race”—no matter what our intentions. League of United Latin Am. Citizens v. Perry, 548 U.S. 399, 511 (2006) (Roberts, C.J., concurring in part, concurring in the judgment in part, and dissenting in part)….

***

So public officials may sincerely believe that race-conscious policies are beneficial rather than corrosive. But the American people have never been the blindly trusting sort. Citizens may fairly wonder how officials can condemn race-neutral policies as racist and defend explicitly race-conscious programs as inclusive.

“Equity” and other CRT approaches will eventually have a judicial reckoning. When that day comes, those of us attacked for speaking out for equality without regard to skin color will be vindicated, and those demanding race-based outcomes will be shamed.

That time may be years away, however, and in the meantime, tremendous damage to the fabric of the country will have been done.

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Comments

madisonian_123 | August 2, 2021 at 11:19 am

“That time may be years away”
Respectfully, why does this have to be the case? Since I have no training in the practice of law, I can observe as a layperson that at times the wheels of justice just have to move a little bit slower in order to prevent a sort of whipsaw effect where hastily made decisions are reversed and there is instability in the law. But why must we tolerate obvious violations of the law for years before the courts weigh in?

    I am a lawyer and this is where federal agency interpretations–like the Obama Administration’s vision of disparate impact theory, which the Biden Administration is now following–mean that there is no timely recourse for school districts who cannot easily dispute the agency interpretation unless they are willing to forego the massive amounts of federal money they are now addicted to. Disparate Impact Theory, which infers discrimination from outcomes that differ from demographics, was contrary to the existing case law but it is quite consistent with the emphasis in CRT and with Obama and Biden pushing for fundamental social transformation.

    This is from a 2002 Chapel Hill presentation by law professor and social activist john a powell, who has now moved on to the Othering and Belonging Institute at Berkeley:

    “True integration requires community-wide efforts to dismantle that culture and to create a more inclusive educational system and a more inclusive society in which individuals and groups have real, equal opportunities to build and participate in the democratic process. {Note that such participation becomes the new vision for what Equity is supposed to create via the schools}…true integration transforms the mainstream…institutions, communities, and individuals are fundamentally changed.

    This is not actually about WHAT to teach in the schools or HOW, but what each student must be made to BECOME at an internal, noetic level that is conducive to seeing themselves as part of a collective insistent on fundamental change.

      “True integration requires community-wide efforts to dismantle that culture and to create a more inclusive educational system and a more inclusive society in which individuals and groups have real, equal opportunities to build and participate in the democratic process. ”

      This is self-contradictory. If groups have equal opportunities then it is not possible that individuals will have equal opportunities. The two are wholly at odds with each other by any practical measure.

      I know it is pablum since “build and participate in the democratic process” contains no real meaning, but it just shows the lack of intellectual rigor we are dealing with here.

        jimB in reply to Thatch. | August 3, 2021 at 2:04 pm

        I, too, am s lawyer but never was involved in the area of race relations. But my understanding at the beginnings of the disparate impact cases was that the disparate impact was only one bit evidence of racial intent. Then it later became the deciding factor. It has gotten so much out of hand that we see no reference back to the language of the statute or of the legislative history. I seem to recall a statement by a proponent that there would never be quotas for racial inclusions. (Senator Humphrey? My memory is faulty and I no longer have access to the law library.)

      henrybowman in reply to Robin. | August 2, 2021 at 11:18 pm

      “Disparate Impact Theory, which infers discrimination from outcomes that differ from demographics, was contrary to the existing case law but it is quite consistent with the emphasis in CRT and with Obama and Biden pushing for fundamental social transformation.”

      To all those who complained (on another thread) that it was illogical to infer that Whitehouse’s beach club was racist just from their membership rolls… boo yah. That’s the Democrat standard. Whitehouse is a Democrat leader. Pony-soldier up, Sheldon.

    JusticeDelivered in reply to madisonian_123. | August 2, 2021 at 3:45 pm

    It never ceases to amaze me that so many people have no moral compass.

      They do, Except when it comes to the rest of us.

      henrybowman in reply to JusticeDelivered. | August 2, 2021 at 8:13 pm

      Their moral compass is “I’m all right, Jack.”

      “Hereby it is manifest that during the time men live without a common power to keep them all in awe, they are in that condition which is called war; … where every man is enemy to every man… there is no place for industry, because the fruit thereof is uncertain: … no knowledge of the face of the earth; no account of time; no arts; no letters; no society; and which is worst of all, continual fear, and danger of violent death; and the life of man, solitary, poor, nasty, brutish, and short.”
      –Thomas Hobbes

      Hobbes was describing the state of man in an ungoverned society — the genius of progressivism has been to duplicate precisely this condition in a governed society.

    Laws like this are set-up to oppress by the virtual impossibility of practical opposition.

    You want to REALLY see the grand-daddy of all such laws? Read the Obamacare law:
    https://www.healthcare.gov/where-can-i-read-the-affordable-care-act/

    It’s very scary.

Judge Ho to his children: Daddy’s in a spot of trouble with our democrat neighbors now, so we are moving to Fiji, changing our names, and if needed, faking our own deaths. Hopefully, our friends won’t hunt us down.

If you’re going to be blind to race you’d better have some way of defending disparate impact lawsuits against white malevolence charges. Like that American blacks have an average IQ of 86 that accounts very nicely for different outcomes without the slightest ill will determining it, and that people are in fact evaluated as being where they should be without regard to race.

There is no link to the opinion
nor is there a case name in this story

Please provide link or name to the case

thanks

Not sure what your story is saying?. Did this judge stop descrimination or not?

    Andy in reply to r2468. | August 2, 2021 at 12:38 pm

    You are right, it is confusing. I read it that the original judge with drew his first opinion AFTER the facts came to surface.

      henrybowman in reply to Andy. | August 2, 2021 at 8:16 pm

      No, the case where the opinion was withdrawn (preparatory to issuing a new opinion, because it’s back in litigation) is a different case entirely, just a similar subject.

Because the plaintiff was focused on race, the abusive issue in condemnation / eminent domain cases was missed.

5A requires just compensation for takings. As noted in the statement of facts in the opinion, the city/corp was substantially underpaying for the property based on it highest and best use, along with taking actions that lowered property values. A chance to partly correct Kelo was missed (at least the part about just compensation)

Maybe the best way to end the practice of racial discrimination is to simply stop discriminating by race?

    zennyfan in reply to CommoChief. | August 2, 2021 at 2:58 pm

    Downvoted by a fat thumb acting on its own.

    And kill the scam? No way.

    henrybowman in reply to CommoChief. | August 2, 2021 at 11:23 pm

    As a private businessman, I was forbidden to ask people to fill out my own forms requesting racial information. At the same time, I was required to submit racial information on government forms requesting such.

    Any fifth grader could tell you where the racism in America originates… until he grows up, gets a government job, and immediately goes nose-blind to it.

Diversity [dogma], inequity, and exclusion.

That said, diversity of individuals, minority of one. Baby Lives Matter

More to the point: CRT IS Genocidal Racism.

If you want to eliminate racism, racial hate and violence, you have to start by eliminating the theoretical justification and inspiration for it – which is CRT.

freespeechfanatic | August 3, 2021 at 8:06 am

How long before this judge is doxxed and the mob comes to his house, or threatens his life and his family’s lives?

It is troubling to be looking for a judicial reckoning. While very welcome, this is very much of the manner we perpetually task the Left: running to the courts to get what they cannot achieve through the legislature. The driver for discarding CRT should be the legislature, not the courts.

e pluribus unum | August 3, 2021 at 7:46 pm

I long for the day when we only hear the word “equity” with regard to a mortgage and “CRT” in some historical reference to a television’s Cathode Ray Tube.

Not sure why our post is not showing. Removing the blockquotes this time. Trying again to make the suggested comparison:

Judge Ho: “Compare Martin Luther King, Jr., I Have A Dream: Address to the March on Washington for Jobs and Freedom (Aug. 28, 1963) (“I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.”), with Ibram X. Kendi, How to Be an Anti-Racist”

“Why is equality so assiduously avoided? Why does white America delude itself, and how does it rationalize the evil it retains?

“The majority of white Americans consider themselves sincerely committed to justice for {Blacks}. They believe that American society is essentially hospitable to fair play and to steady growth toward a middle-class Utopia embodying racial harmony. But unfortunately this is a fantasy of self-deception and comfortable vanity. Overwhelmingly America is still struggling with irresolution and contradictions.”

    henrybowman in reply to Zachriel. | August 7, 2021 at 8:12 pm

    How can you even make a comparison between MLK’s inspiring speech of hope and unity, and a racist’s bald, unproven, and unprovable assertion that “whites live in a fantasy world, and if you disagree, you’re just in denial, therefore I win?” It’s comparing apples and road apples.

henrybowman: How can you even make a comparison between MLK’s inspiring speech of hope and unity, and a racist’s bald, unproven, and unprovable assertion that “whites live in a fantasy world,

Thanks for asking. But it does seems as if neither you nor Judge Ho have actually read anything written by Dr. King.

“The majority of white Americans consider themselves sincerely committed to justice for the Negro. They believe that American society is essentially hospitable to fair play and to steady growth toward a middle-class Utopia embodying racial harmony. But unfortunately this is a fantasy of self-deception and comfortable vanity.”

Where Do We Go From Here: Chaos or Community?, Martin Luther King Jr., 1967

Where I get lost is the doctrine of “intersectionality.” Suppose you have a set of data that passes the equitable impact theory — say a magnet school that draws a racial mixture in line with the school district student population and a gender distribution in line with the school district student population. However, under intersectionality, that result would be unacceptable because the number of female black students or the number of transgendered students is insufficient. Somehow, every student is statistically equal, but “intersectionality” gives more “points” to students with multiple minority/disadvantaged memberships.

lawgrad: Somehow, every student is statistically equal, but “intersectionality” gives more “points” to students with multiple minority/disadvantaged memberships.

If by points you mean disadvantages, then a black lesbian might be discriminated against for being black, a woman, or a homosexual, or a combination of those. Structurally and culturally, a white cisgender male is considered the “norm” against which others are measured.

I won’t hold my breath waiting for the federal courts to restrain/constrain the corrosive, poisonous and racist ideology of “critical race theory.” Rest assured, there will be sufficient numbers of Dhimmi-crat activists/legislators sitting on the federal bench (so-called “judges”) who will gleefully uphold CRT in cases where it is challenged.

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