Quin-essential cases: Race, to the Court
By: Quin Hillyer
Examiner Columnist
March 3, 2009
Attorney General Eric Holder says that Americans are “cowards” who need a nationwide conversation on race. The Supreme Court soon will stimulate one.
Last week, the high court received amicus curiae (“friend of the court”) briefs in two racially charged cases and heard oral arguments in a third. In different ways, all three challenge the racial preferences that Holder consistently advocates.
The first, most attention-grabbing case involves New Haven, Connecticut’s fire department, which carefully designed a race-neutral, competitive exam to choose captains and lieutenants.
When only white candidates aced one particular set of exams, with no black candidates qualifying at that time, the city’s Civil Service Board refused to certify the results – thus denying promotion to the qualified white candidates.
The amicus brief jointly submitted by the Cato Institute, the Reason Foundation and the Individual Rights Foundation directly challenges the “perils and perversity” of the refusal to promote qualified white candidates:
“First, employers will be impelled to jettison tests that are entirely innocuous and would easily survive legal challenge. Second, many of those tests ensure efficiency and sometimes – as in this case – public safety. Third, the act of throwing out those tests itself constitutes racial discrimination.”
The second case involves an elective utility board in Texas that was not allowed even to move its polling places from private residences to public schools without obtaining “pre-clearance” from racial bean counters at the Justice Department – a sometimes onerous process – as a result of the controversial Section 5 of the Voting Rights Act.
One key amicus brief in this case was submitted by Abigail Thernstrom, vice chairman of the U.S. Commission on Civil Rights, along with several prominent former members of the Justice Department’s Civil Rights division.
They complain that when Congress renewed the Voting Rights Act in 2006, “it substantially altered the substantive requirements of that provision in a way that deliberately increases the pressure on covered jurisdictions to engage in race-based redistricting.” In doing so, they write, the new Section 5, quite improperly, “requires race-based line drawing and group favoritism, rather than equal opportunity,”
Further, they write, if the act “were interpreted to protect this kind of influence, it would unnecessarily infuse race into virtually every redistricting, raising serious constitutional questions.”
The third case involves the state of Hawaii’s ordinarily mundane ability to sell lands it owns. An independent state agency called the Office of Hawaiian Affairs sued to stop the sales because it claims the land belongs not to the whole state but only to those citizens descended from “native Hawaiians.”
The latter are defined as blood descendants of original Hawaiian islanders before Hawaii became a U.S. territory (and then state). Hawaii’s Supreme Court ruled in favor of the agency and the amorphous class of native Hawaiians, against the state government and the rest of Hawaii’s citizens.
Cato again filed an amicus brief, this time joined by the Pacific Legal Foundation and the Center for Equal Opportunity. “The State of Hawaii’s sovereign authority to manage its land for the good of all of its citizens has been replaced,” they wrote, “with a court-imposed duty to hold the land for the benefit of one racial class.”
This, they wrote, is wrong: “It is time, once and for all, to put an end to the blatantly unconstitutional state and federal programs in Hawaii that grant race-based preferences in violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.”
In all three cases, the amici cite numerous court precedents for their positions against race-based governmental favoritism. In all three, they promote the color blindness that once was the goal of the civil rights movement.
That is not, apparently, Holder’s goal. In another provocative speech, to the liberal American Constitution Society in 2004, Holder said: “We, liberals and progressives, must remain guardians of our own heritage in the fight for racial equality, and must renew our commitment to creating a society that is not blind to race, but accepting of it.”
The Supreme Court in this term will help determine whether the Constitution “accepts” government action that picks and chooses which races to benefit – to the detriment of everyone else.
Quin Hillyer is associate editorial page editor for The Washington Examiner. He can be reached at qhillyer@gmail.com.
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