Slightly belated blogging on this one.
The Boston Globe reported that the US Commission on Civil Rightsis now headed up by libertarians. No more than four of the nine Commissioners may be from any one political party. Several of the current Commissioners had been registered Republicans who switched to Independent status before being appointed to the USCCR. The focus of the group has changed:
Instead, the commission has put out a series of reports concluding that there is little educational benefit to integrating elementary and secondary schools, calling for closer scrutiny of programs that help minorities gain admission to top law schools, and urging the government to look for ways to replace policies that help minority-owned businesses win contracts with race-neutral alternatives.
The bipartisan nature of the Commission is meant to ensure that it does not pursue political ends. While it would be problematic if the Commission were pursuing a conservative agenda, it is also problematic that it had a very liberal agenda in years past. The current Commission is focused on the results of proposed legislation and areas, as well as ensuring that one set of Constitutional rights are not subverted to effectuate the ends of another set.
The Commission’s work on the ABA’s mandate for affirmative action in law schools is but one example. Pragmatically, affirmative action is detrimental to many of the people it purports to help. Statistically, 50% of African-American students are in the bottom 10% of their class after their 1L year; they are two and a half times as likely to drop out (often for financial reasons; however, this may be a direct result of a loss of scholarship money after a poor 1L year); they are four times as likely to fail the bar on the first try, and six times as likely to never pass the bar. As of 1994, black students had about 50% more debt than their white peers.
A JD, without a license to practice, is of marginal utility. In law, the rate-limiting step is three years and six figures of debt after admission; this is not college, where anyone admitted can make graduate, nor engineering, where those who cannot get through the curriculum may take a humanities degree, and those who graduate go straight into practice.
The Supreme Court upheld the use of affirmative action in state schools, despite the Fourteenth Amendment violation, on grounds of academic freedom and First Amendment rights. The ABA’s proposal mandated that schools use affirmative action. Aside from the perversity of mandating the use of freedom (and the resulting loss of First Amendment rights), the policy is objectively harmful to the people it purports to help. There should not be anything political about a results-based analysis.
Likewise, the Commission studied HUD regulations and First Amendment rights. Landlords are not permitted to discriminate against prospective renters on a variety of grounds (race, sex, marital status) unless, inter alia, the landlord occupies the home. In that case, the freedom of association rights of the landlord permit her to rent – or not – to those whom she chooses – she is permitted to discriminate in her own home. HUD’s interpretation of the Fair Housing Act, however, prohibits her from telling prospective renters that she will discriminate (i.e. “Single females only,” or “no children”). The Commission found fault with this on several grounds: 1) it violates the First Amendment rights of the landlords; and 2) it requires landlords to waste people’s time: the prospective renters cannot determine, in advance, who will not rent to them. As a pragmatic matter, such a rule is absurd: it achieves no positive result for the people it supposedly protects, and, in doing so, inconveniences them and tramples upon the Constitutional rights of another group.
Surely, results-based analyses are not partisan in nature; a libertarian Commission, which questions whether policies aimed at helping various minority groups are helpful or even Constitutional, is hardly one with a radically different aim that previous Commissions whose aim was to improve the lives of minorities and women. Too often, lawyers proceed entirely on theoretical justifications, with little consideration given to the empirical results of their policies; to the extent that the shift in the Commission’s policies reflect this approach, such is hardly grounds for criticism.