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Yesterday, we explored President Barack Obama’s teachings at the University of Chicago Law School from 1996. We explored the first question (and answer) of his December 1996 final exam. Today, we move on to the second question.
Question 2 is even more interesting, and sheds light on how deeply Obama was influenced by Derrick Bell's Critical Race Theory.
This question concerns a fictional "Mayor Dudley Duright," the first African-American mayor of Wazoo City. The population of the city is 50 percent black and 50 percent white, and highly segregated.
The Mayor decides to deal with two issues: racial disparities in city contracting, and racial disparities in the city’s Fire Department (foreshadowing the Ricci case, in which Justice Sonia Sotomayor was overruled).
Obama's fictional mayor hits on two solutions. To deal with city contracting, he takes money from Project HOPE (Obama’s already doing the hope thing) and uses it to help firms located principally in the “low-income community,” as a proxy for race.
To deal with the disparity in racial composition of the Fire Department, the Mayor implements a plan wherein everyone takes a basic competence exam, and then a lottery takes place to select firefighters. The firefighters' union in the state of Wazoo quickly launches a referendum to stop the plan, and use one based on merit through testing.
The Chicago Fire Department was told by a federal appeals court today that it must hire 111 African-Americans who successfully argued that they were discriminated against in 1995.
And, the Chicago Sun-Times writes, the court ordered that "tens of millions of dollars" in damages be paid to 6,000 other blacks.
At issue, as we wrote a year ago, was the way the city handled a firefighters' entrance exam. The plaintiffs argued, the Sun-Times reports, that the test did not adequately measure the applicants' abilities and that the scoring system made it far more likely that white applicants would be hired.
Last year, the U.S. Supreme Court ruled unanimously that the plaintiffs' had not waited too long to bring their suit and sent the case back down to the Seventh Circuit Court of Appeals. Today, that court handed down its decision.
LDF litigated the case with co-counsel that included the Chicago Lawyer’s Committee for Civil Rights, three Chicago law firms (Miner, Barnhill & Galland,
Here’s Obama’s analysis of the contracting plan:
Overall, says Obama, “it would appear that under current Equal Protection doctrine, white plaintiffs would have a very difficult time proving that the Mayor’s plan is based on an invidious intent to discriminate against whites—a telling example, perhaps, of why an ‘intent’ test is now a particularly fruitful means of analyzing disparate impact claims in a society where the socio-economic disparities between the races are so stark, pervasive, and deeply rooted.” This seems vague, but what it’s saying is pure Critical Race Theory: in evaluating a law, we shouldn’t look to intent but to effect, because the system is simply so corrupt and perverse. This is the same logic underlying the Holder Justice Department’s attempt to shut down the Texas voter ID law: the notion that the system is too corrupt to allow for laws of neutral application to go forward.
The case law, Obama argues, “recognizes that blacks are burdened not only by intentional racism but also by facially neutral processes that nevertheless place blacks in a structurally subordinate position.” Affirmative action programs, Obama says, “help alleviate structural inequality.” While such programs aren’t constitutionally required, to Obama’s obvious chagrin (he scoffs at “the Court’s ‘negative charter of liberties’ reading of the Constitution and theories of judicial restraint”), he says that once implemented, they cannot be overruled. Why? Because the white majority cannot “change the rules of the game so as to make it more difficult for blacks and other minorities to achieve such affirmative programs through the give and take of the democratic process—by resort, for example, to state-wide initiatives and referendums in which minority influence is lessened.”
Obama argues that the Mayor could say that “there are no pre-political, non-racial, ‘legitimate ways to select a tire [sic] department or determine ‘merit.’ The Mayor’s plan is ‘racial’ in the sense that it represents an affirmative effort to increase black representation on the police force without resorting to quotas or lowering standards of performance.” In fact, this purely racial program is “no more racial than is the union’s plan to maintain the status quo through a regime of written examinations.” Note the moral relativism here: Obama believes that a battery of non-discriminatory tests is as discriminatory as a clear affirmative action program.
And Obama continues along these lines, reiterating his distrust for democracy: “The union is free to debate the pros and cons of the Mayor’s plan in the public square; it can put pressure on the City Council to block the Mayor’s proposal, and can organize to vote the Mayor out of office. What it cannot do is shift decision-making over these racially-charged issues to the state level, where (we assume) blacks have less of [sic] political clout.”
So here’s what we’ve learned today. Lecturer Obama believed deeply in Critical Race Theory – so much so that he advocated creative legal strategies to argue Critical Race Theory into law. He thought that facially neutral statutes were discriminatory thanks to the racism of the system. He even argued that the people of the states be stripped of their power to change local law, if such changes cut against narrow minority interests.
In 1994 Obama worked for Davis Miner on a case titled Barnett v. Daley, where he was part of a legal team that sought to raise the number of black super-majority voting districts in Chicago from 19 to 24. According to the judge in the case, Richard Posner, the Obama team held that “no black aldermanic (city council) candidate in Chicago has ever beaten a white in a ward that had a black majority of less than 62.6 percent, and it is emphatic that the ward in which the population is 55 percent black is not a black ward -- is indeed a white ward, even though only 42 percent of its population is white.”
In a 1995 case known as Buycks-Roberson v. Citibank, Obama and his fellow attorneys charged that Citibank was making too few loans to black applicants and won the case. As one commentator noted in May 2008, legal “successes” such as this were probably responsible for the sub-prime mortgage crisis of 2007. That is, banks were not loaning to blacks whose credit was poor. When the law forced them to lend money anyway, the inevitable collapse occurred.