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.”
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:
- Appeals Court Enjoins Biden’s Coronvirus Relief Favoring Non-Whites and Women.
- White Farmers Win Temporary Injunction Halting Biden Loan Forgiveness Program That Favored Non-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.DONATE
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