- Published on Tuesday, 14 March 2017 10:07
- Written by Roger Clegg
The “disparate impact” approach to civil-rights enforcement is bad policy in any area —employment, voting, housing, credit, school discipline, policing, pizza delivery (yes, it’s been applied there, too), you name it — but it is perhaps most bizarre in environmental law, where it’s labeled “environmental justice.”
The approach in general considers it to be illegal discrimination if a practice has a statistically disproportionate racial effect, even if the challenged practice is neutral by its terms and in its intent, and is evenhandedly applied. So, for example, if a landlord prefers not to rent to people with a record of violent-crime convictions, he can be held liable if that policy results in a higher percentage of those of this race being disqualified than those of that race — even though he adopted it with no racial intent and applies it to all prospective tenants.
And in the environmental area, this means that the government tells an agribusiness, for example, “This pesticide that you are using is making children sick in a nearby neighborhood. Now, we know that you don’t intend any racial discrimination, and we would be okay with children getting sick if the neighborhood were racially mixed, but the problem is that it is a heavily minority neighborhood. Therefore, you must stop.”
As I said, that’s just bizarre. If the business were deliberately targeting minority neighborhoods, that would be different; and if the government said that making children sick in any neighborhood was illegal, that would make sense, too. But saying that the illegality depends on unintended racial outcomes does not. I testified on this a year ago before the U.S. Commission on Civil Rights.
So it’s good news that the Trump administration has announced that it wants to close the Environmental Protection Agency’s Office of Environmental Justice, and that its proposed budget starts the job by making cuts in the office’s budget and personnel. This has prompted the office’s head to announce his resignation last week, and that’s fine, too.
On the other hand, the Trump administration has also said that it still supports the idea of environmental justice, that this work will be done elsewhere at EPA, and indeed that last week it was launching an environmental justice investigation against the Hawaii Department of Agriculture and Agribusiness Development Corporation. All that’s too bad, and the administration needs to do some rethinking.
One last note: The purported authority for the federal government’s “environmental justice” efforts is Title VI of the 1964 Civil Rights Act, which is also bizarre, since the Supreme Court has said that this statute contains no “disparate impact” ban. Thus, for federal agencies to use the disparate-impact approach under this statute is a classic example of regulatory overreach. The approach is not only bad policy, but illegal.
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Ironic but Illustrative – When Virginia governor Terry McAuliffe signed an executive order that automatically restored voting rights to felons last year, he also restored to them other civic rights, like running for state office. As a result, Nathan Larson — who in 2009 pled guilty to threatening to kill the U.S. president, leading to 16 months in prison and three years of supervised release — has now thrown his hat in the ring for election to the Virginia House of Delegates.
I think this case underscores why it makes perfect sense to take away certain rights from felons, at least until they have served their sentences in full and then shown they have turned over a new leaf by going some period of time without committing a new crime. If you won’t follow the law yourself, you can’t claim a right to make the law for everyone else.
Or look at it this way: We don’t let everyone vote, because there are certain minimum, objective standards — of responsibility, trustworthiness, and commitment to our laws — that we require of people before they can be entrusted with a role in the solemn enterprise of self-government. Children, noncitizens, the mentally incompetent, and those who have committed serious crimes against their fellow citizens don’t meet those standards.
The Left thinks that felons should be allowed to vote, and indeed the ultimate aim is for not only all released felons but all those still in prison to be able to vote. I was in a debate on this topic once when my opponent said he thought it was just wonderful that the assassin of Israeli prime minister Yitzhak Rabin would still be allowed to vote, from prison, in that country. That, I said, was crazy.
Automatically giving the right to vote and hold office back to a person who wanted to kill the president dramatizes the connection we ought to recognize between being civically responsible and having civic rights.
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Victory in Guam – Last week a federal trial court in Guam ruled unconstitutional a proposed plebiscite in which only Chamorros (the native group indigenous to Guam) would have been allowed to vote. That’s the right decision, since such racial discrimination is banned by the 14th and 15th Amendments. Congratulations and kudos to Christian Adams, the Center for Individual Rights, and the law firm Gibson Dunn, all of whom had a hand in this important victory. And, I should add, the Center for Equal Opportunity was in there as well.
By the way, you might have thought that the U.S. Department of Justice would have played some role in vindicating the voting rights at stake here, but you would have been wrong: The Obama administration stayed conspicuously on the sidelines. Here’s hoping that if there is an appeal from or outright resistance to last week’s court ruling — the governor of Guam has made some George Wallacesque pronouncements — the Trump administration will get in the game.