The Vetting: Obama Teaches Constitutional Law — Part II

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.

To recap: question 1 revealed that President Obama does not believe that “tradition” is an important justification for laws; that he thinks childbearing and childrearing have almost nothing to do with marriage; and that legal realism is the way judicial decisions get made – i.e. that judges make decisions according to their own politics, rather than based on statute or law.

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.

So, are these measures constitutional? Let’s look to Obama’s answer sheet.

Here’s Obama’s analysis of the contracting plan:

• The first measure – the affirmative action contracting program – is constitutional, says Obama. Just because the Mayor knew that the plan would disproportionately benefit blacks “does not, by itself, prove invidious intent.” In this case, says Obama, the government is “simply interested in promoting opportunities for residents of poor communities, a disproportionate number of whom happen to be black.”

• The problem isn’t with the program, Obama says; it’s with white contractors’ “unwillingness to relocate into ‘low-income’ communities or hire ‘low-income workers.'”

• 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.

And here’s Obama’s analysis of the Fire Department plan:

• First, he acknowledges that it will be difficult to get the referendum struck down.

• Then he launches into his real opinion – or what he calls his “more controversial” reading of the case law. The case law, Obama argues, “recognizes that blacks are burdened not only by intentional racism but also by racially 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.” This is a highly radical legal approach. It is based in critical race theory, which states that structural racism is inherent in the system; it is based in an anti-democratic notion that racial minorities must be allowed outsized influence over the process so as to prevent the white majority from reinforcing that structural racism. This is radical stuff.

• And it gets even more radical. 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.” In other words, you can vote on it; you can stump against it; what you cannot do is win by taking it to the people more broadly. Obama does admit that this newfangled approach will probably not fly with the Supreme Court.

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.

More to come …