Excluding by Race
Mar 10, 2014, Vol. 19, No. 25 • By TERRY EASTLAND
In his State of the Union speech in January, President Obama said he was planning a new initiative to help “more young men of color facing tough odds to stay on track and reach their full potential.” Last week, Obama launched “My Brother’s Keeper.” In essence, the president will use the power of his office to nudge foundations, corporations, and state and local governments to find ways to help “young men of color stay in school and out of the criminal justice system,” as the Washington Post put it.
There is an obvious question here. By “color,” the president means “black and brown,” as his former faith-based adviser, Joshua DuBois, wrote in the Daily Beast. But why is the initiative limited to African-American and Hispanic young men? Why is it not open to young men regardless of color—and, for that matter, young women, too?
After all, young Americans facing “tough odds” who want to reach their full potential come in all colors and races, as well as both sexes. By shutting a door of opportunity against some, the president is inviting a lawsuit. More, he is damaging (though not for the first time) his reputation as a politician who sees “not a black America and white America and Latino America or Asian America” but “the United States of America,” as he put it at his breakthrough speech at the 2004 Democratic National Convention.
The new initiative classifies, and encourages its business and nonprofit partners to classify, on the basis of sex and, within the male sex, on the basis of color. But sex-based classifications made by government are unconstitutional unless they have what Justice Ruth Bader Ginsburg, writing for the Supreme Court majority that in 1996 ended the male-only admissions of the Virginia Military Institute, called an “exceedingly persuasive justification.” While it’s hard to see how the president’s initiative could meet such a stiff requirement, color-based classifications confront an even higher hurdle: They are unconstitutional unless narrowly tailored to achieve a compelling interest.
President Obama has said that the “disparities that persist in the African-American community today can be directly traced to inequalities passed on from an earlier generation that suffered under the brutal legacies of slavery and Jim Crow.” Perhaps so-called general or societal discrimination is the compelling interest the White House has in mind, at least in the case of black young men.
But in the 1989 case City of Richmond v. J.A. Croson Co., striking down the city’s race-based contracting program, the Court by a vote of 6-to-3 agreed that societal discrimination is not a compelling interest. Racial classifications, wrote Justice Sandra Day O’Connor, are “strictly reserved for remedial settings.” Nothing Richmond offered as evidence of the need for the program—including the statistical gap between the percentage of minority construction firms awarded contracts and the percentage of minorities living in the city—was strong enough to permit an inference of discrimination.
Surely the Obama administration is not trying to be sued. But on the assumption that the initiative offers benefits only to young men of certain colors, then some young man not of those colors denied on that account participation in a given program could well have standing to bring a case. The same is true of any young woman denied participation, even a young woman who is African American or Hispanic.
What makes the new initiative an almost certain loser in the courts is its exclusionary nature. In the landmark 1978 Bakke case, in which the Supreme Court struck down a race-based admissions program, 16 of the 100 seats in each class were set aside for African-American, Latino, Asian-American, and Native-American applicants—an aspect of the program that especially bothered the majority. Obama’s initiative goes further by excluding entirely from its programs all young men who are neither black nor brown.
The initiative calls to mind racially exclusive programs designed for young people of color that have come to light, and been challenged, by young people willing to insist on equal rights for all Americans. An example: Several years ago, the Dow Jones News Foundation, Virginia Commonwealth University, and Media General Corporation sponsored a racially exclusive summer journalism internship program. A 15-year-old white journalism student sued, and the case was settled, with the program being opened to all, without regard to race.
Obama has been criticized by liberals within his party for having done little specifically to help minorities, blacks in particular. The new initiative is his response, but the racial classifications it indulges will teach, as Justice Potter Stewart once put it, “that people can, and perhaps should, view themselves and others in terms of their racial characteristics.” Obama ought to open the initiative to all and use socioeconomic criteria that are color- and sex-neutral to determine which young people need help in staying on track and reaching their full potential.
White House sources told certain media outlets on February 10 that the press office would be distributing information on the initiative on February 13. That didn’t happen until February 27.
We have a hunch why. The lawyers have been in knots over it, wondering how to save it from unconstitutionality. They won’t be able to. Someone in the White House should advise the president, who once aspired to transcend race, who once spoke movingly of how we are “one people,” that his initiative needs fundamental correction.
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