- Published on Tuesday, 28 February 2017 06:46
- Written by Roger Clegg
Last week I spoke at the law school for the University of Missouri at Kansas City against the use of a “disparate impact” approach in civil-rights law. It went very well, and I thought in this week’s email I would give you a summary account of what I said. It’s similar to a talk I gave at Harvard Law School not too long ago, with the difference that last week I also had some excellent barbecue afterwards.
Under a disparate-impact claim of discrimination, discriminatory motive is irrelevant: It need not be alleged nor proved, and it doesn’t even matter if the defendant proves that there was no discriminatory motive. If a policy or procedure results in a disproportion of some sort — not only on the basis of race, color, or national origin, but also religion, sex, or whatever — then that’s enough, even if the policy is nondiscriminatory by its terms, in its intent, and in its application.
The defendant can prevail only by showing — to the satisfaction of a judge or jury who may know or care nothing of the defendant’s needs — some degree of “necessity” for the policy.
The Obama administration made no secret of its love for this approach to civil-rights enforcement, and was very aggressive in applying it to every imaginable situation. In education, for example, it was hostile to school discipline policies if they had a disproportionate racial or ethnic result (even if those policies actually were to the benefit of the minority children trying to learn in a class that would otherwise be disrupted); it complained if policing policies has a disproportionate result on majority-black neighborhoods (even if the law-abiding people in the neighborhood welcomed a police presence); it even insisted on drawing distinctions between acceptable and unacceptable pollution, depending on the skin color and national origin of those affected by the pollution!
The disparate-impact approach pushes potential defendants to do one or both of two things: Get rid of perfectly legitimate selection criteria, or apply those criteria in a race-conscious way so that the resulting racial double standard will ensure that the numbers come out right.
In other words, we’re supposed to stop judging people by the content of their character, and start judging them by the color of their skin.
The fact of the matter is, there is probably NO selection criterion that does not have a disparate impact on some group or subgroup.
It’s frequently asserted that the disparate-impact approach is needed because otherwise it is too hard to prove discrimination. But that is not true: I used to work in the Justice Department’s civil rights division (under Reagan and the first President Bush), and we had no problem winning lawsuits without using the disparate-impact approach. What’s more, if this objection were legitimate, then its proponents should be willing to allow defendants to win if they can prove that they lack discriminatory intent — but they have no interest in that.
Here’s the most fundamental point of all: If a business, agency, or school has standards for hiring, promoting, admissions or offering a mortgage that aren't being met by individuals in some racial and ethnic groups, there are three things that can be done. First, the standards can be relaxed for those groups. That is what racial preferences do. Second, the government can attack the standards themselves. That is what the disparate-impact approach to enforcement does. Third, one can examine why a disproportionate number of individuals in some groups aren't meeting the standards — such as failing public schools or being born out of wedlock—and do something about it. But this option holds little interest on the political left.
After my presentation, I took questions from the audience, and then talked briefly about what racial preferences in university admissions is a bad idea. I wanted to be sure I earned that barbecue.
* * *
The Center for Equal Opportunity recently sent this letter to the new Secretary of Education:
The Honorable Betsy DeVos
U.S. Department of Education
400 Maryland Avenue, SW
Washington, DC 20202
Dear Secretary DeVos,
Congratulations on your appointment and confirmation as Secretary of Education! The Center for Equal Opportunity is delighted.
We know you are busy but we felt compelled to write since we understand that there is an ongoing concerted effort — using telephone and email — by foes of due process rights for accused students to try to intimidate or pressure you to keep in place the witch hunt against male students, the university kangaroo court system, and the resulting rubber-stamped expulsions all in the name of Title IX. Of course, many of these people opposed your confirmation in the first place, which is evidence enough of their general unreliability, poor judgment, and ideological untrustworthiness.
In all events, we wanted to note that we believe, on the contrary, that the Obama administration’s approach in this area conflicts with past court rulings and encroaches on civil liberties.
As explained in the below letter from former [Department of Education, Office for Civil Rights] attorney Hans Bader in the Chronicle of Higher Education, for example, a notorious “Dear Colleague” letter departed from past administrative and judicial precedent by demanding that colleges investigate off-campus conduct. As Mr. Bader explained earlier, "The Obama administration ignored past Office for Civil Rights rulings authored by its own career lawyers and civil servants in forcing colleges to investigate off-campus conduct. Such 'unexplained departures from precedent' are arbitrary and capricious, as the D.C. Circuit Court of Appeals noted in Ramaprakash v. FAA (2003). The Obama administration also ignored two federal appeals court rulings, and language in a Supreme Court decision, by demanding that colleges do so."
Thank you for your attention to our concerns, and congratulations and best wishes again on your appointment!
President and General Counsel
Center for Equal Opportunity