By Hans Bader
The Obama administration has a double standard on hate crimes. When the victim is black or Hispanic, they prosecute the alleged offender. When the victim is white, they don’t. This violates constitutional equal-protection guarantees, which forbid discrimination against whites, except for certain bona fide affirmative action programs in employment, education, or contracting.
As a former Justice Department civil-rights lawyer notes, the Criminal Section of the Justice Department’s Civil Rights Division does nothing when the victim of a hate crime is white:
when the victims of racial violence are white, nothing happens.
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When a mob of blacks savagely attacked random whites at the Wisconsin State Fair earlier this summer, the Section did nothing. When a similar riot occurred at the Iowa State Fair in August 2010 — where bands of black teens organized a “beat whitey night” — the Section once again did nothing. Last month, still another flash mob of blacks beating whites took place in Philadelphia, yet the Section did nothing. The same is true near Pittsburgh and in Ohio.
Just like the outrageous dismissal of the New Black Panther Party case, there is a pervasive hostility in this administration to bringing cases on behalf of white victims.
By contrast, if the victim is non-white — like an undocumented immigrant from Mexico attacked in Pennsylvania — the Justice Department prosecutes; in the Pennsylvania case it obtained guilty verdicts in federal court against two white teenagers who had previously been found not guilty of hate crimes and most other charges in Pennsylvania state court. (We previously discussed the danger that the recently-broadened federal hate-crimes law will be used to prosecute people who have previously been found not guilty, resulting in potentially unfair convictions, and circumventing constitutional safeguards against double jeopardy, at this link. Depending on how broadly it is construed, the federal hate-crimes law could also end uprestricting free speech in cases of alleged incitement.)
The double standard is itself the product of an increasingly politicized Justice Department, whose ideologically-driven hiring patterns (and discrimination against moderate and conservative applicants in hiring) under the Obama administration dwarf any partisan hiring in the past.
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The Obama Administration is ignoring a unanimous Supreme Court ruling in McDonald v. Santa Fe Trail Transportation Company (1976), which held that all races — including whites – are covered by the civil-rights laws and constitutional guarantees of equal protection. That ruling, which allowed white employees to challenge their race-based firing, was authored by the Supreme Court’s first black justice, Thurgood Marshall, who had earlier successfully argued the landmark case of Brown v. Board of Education, which struck down school segregation in 1954. Civil rights laws forbid racial harassment and violence aimed at whites, even in settings where affirmative action is sometimes permitted, like the workplace. (For example, courts have ruled that employers are liable for racial harassment against whites, in cases like Bowen v. Missouri Department of Social Services (2002) and Huckabay v. Moore (1998)).
While there is a limited exception to equal protection for “affirmative action” that meets a “strict scrutiny” test, the courts have never applied such an exception to crimes or crime victims, and have declined to recognize such an exception outside contexts like employment, education, and contracting, as the Supreme Court illustrated in categorically rejecting racial eligibility requirements for voting in Rice v. Cayetano (2000). (Yet, in 2009, the Obama Justice Department acted as if it were displeased by the fact that white voters have voting rights.) Moreover, even affirmative action plans cannot systemically exclude whites, or otherwise “unduly trammel” their rights, as the courts noted in declaring illegal the firing of a white teacher based on her race in Taxman v. Board of Education of Township of Piscataway. Thus, the Obama Administration could not justify basing hate-crimes prosecutions on victims’ race on an “affirmative-action” rationale, even if affirmative action applied to criminal cases, which it does not.