- Published on Thursday, 02 February 2017 06:56
- Written by Roger Clegg
I had occasion recently to post on National Review Online this short summary of why the accusation of “white privilege” is poisonous:
It is, for starters, a divisive phrase, much more likely to hurt race relations than help them, as it lumps together all white people — many of whom cannot be considered “privileged” by any reasonable standard — and points an accusatory finger at them, asserting, “You don’t deserve what you have.” It is, at bottom, just another way of complaining about stereotyping, even though all racial groups — indeed, all groups, period — face stereotyping, some negative and some positive, and there’s nothing new or remarkable about it. It overstates the extent to which stereotyping occurs and the consequences it has. And, finally, playing this particular race card suggests that racial disparities — and, indeed, racial stereotyping — are due solely to racism simpliciter, and have nothing to do with culture and, in particular, cultural dysfunctions. It is, in other words, the “conversation on race” that we have come to expect from the left: All whites must accept blame for all disparities of any kind, and any suggestion that some non-whites have failed to act responsibly is blaming the victim.
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Another Bad “Disparate Impact” Lawsuit – The Ninth Circuit last month heard oral argument in a case challenging the NCAA’s policy of barring all convicted felons from coaching in NCAA-certified tournaments held for recruiting student-athletes to NCAA Division I schools. The policy is said to have a “disparate impact” on African Americans, and this is supposed to violate Title II of the 1964 Civil Rights Act, which bans “discrimination or segregation on the ground of race, color, religion, or national origin” in “places of public accommodation.”
Sigh. Putting aside why the NCAA having this rule is “public accommodations” discrimination covered by Title II in the first place, it would be absurd to construe this statute to allow “disparate impact” causes of action. Consider a hotel resort, which clearly would be covered: Are its rates, location (are a city’s hotel-zoning decisions to be challengeable, too, by the way, if they have a “disparate impact”?), menus, music, dancing, décor, and on and on to be challengeable because in some way one or the other is less accommodating, statistically speaking, to this group or that group on the basis of race, color, ethnicity, and religion? The disparate-impact approach is exceptionally unwieldy even in the areas where it has already been applied, as I discuss here (noting, among other things, that the Supreme Court’s most recent pronouncement in this area, while disappointing, was at least unanimous in recognizing the dangers with the disparate-impact approach), and there is no reason to make matters worse.
It’s telling that even the Obama administration, which was always very aggressive in using the disparate-impact approach, decided to sit this case out. No federal regulation interpreting Title II as including disparate-impact discrimination is cited by plaintiffs. Fun fact: The district judge in this case, who ruled correctly that Title II does not allow disparate-impact lawsuits, was Gonzalo Curiel — the Obama appointee you may remember as the Latino jurist that President Trump complained about being biased against him.
Finally, bear in mind that the disparate-impact approach requires race-based decision-making rather than prohibiting it. That is, it means that a decision-maker must be conscious of getting its racial, ethnic, and religion numbers right in order to avoid liability, rather than simply making decisions without regard to these things, which of course is what the civil-rights laws are supposed to be all about. Thus, the approach raises constitutional problems, as the late Justice Scalia noted. Accordingly, the Center for Equal Opportunity joined and helped write an amicus brief filed with the Ninth Circuit, urging the court to adopt the principle of limiting the interpretation of civil-rights statutes to banning actual discrimination (disparate treatment) unless there is clear language in the statute to the contrary (which is conspicuously lacking here: A policy that is, as conceded in this case, neutral by its terms, in its intent, and in its application is not “discrimination or segregation [i.e., no “separate but equal” defense] on the ground of race” etc.).
Here’s hoping the Ninth Circuit agrees and puts paid to the notion that Title II can be used in this absurd way.
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No More “Alternative Facts” – I’m delighted with the news media’s discovery and embrace of objective truth and its rejection of the notion that all narratives are equal. I look forward to them giving short shrift in the future to any continued claims that, for example, Michael Brown and Trayvon Martin were murdered because of their skin color.
Relatedly: I’m under no illusions about the new administration’s frequent willingness to shoot first and aim later, if at all, but I was nonetheless irritated by much of the news media’s coverage over the weekend that suggested the reason seven countries (Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen) are being singled out for immigration restrictions is because they are “majority Muslim.” If it was the aim of the administration to target such countries, it’s doing a poor job, since — according to this university link, for example — there are many, many more majority-Muslim countries not on the list. In fact, I counted 51 majority-Muslim countries in all, meaning that the administration managed to miss 44 of them. So it seems more plausible that, whatever you think of it otherwise, the administration’s policy really is at least aimed at countries with significant terrorist enclaves and deficient screening mechanisms, not lots of Muslims. Whether it is well-crafted, tactically wise, and properly rolled out is, of course, another question.