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Sun08202017

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Bad Times for New York Students

As the recent articles here and here discuss, the combination of the Obama administration and Mayor Bill de Blasio has proved toxic for safety and order in New York City public schools. On top of that, the New York Board of Regents announced last week that it was no longer going to require aspiring teachers there to pass a literacy test.

The reason for this madness is in both instances the same: the felt imperative of getting the numbers right, of getting rid of any standard that might have a “disparate impact” on the basis of race or ethnicity. If discipline standards and literacy requirements disqualify too many African Americans or Latinos, then those standards and requirements have to go.

The losers will be the decent students who must now deal with thuggish classmates and incompetent teachers. And we can’t really label “ironic” the fact that these students will themselves be disproportionately members of the poor and of minority groups, because it is so often the case that the victims of left-wing do-goodism are the poor and particularly the minority poor.

By the way, the Obama administration’s guidance letter on disparate impact and school discipline can be withdrawn anytime the Trump administration likes. Just a gentle suggestion.

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Likewise, another recent article discussed efforts to ensure a politically correct racial balance in public schools in the assignment of students themselves.  My published response:

Measuring Diversity

The law should not make distinctions on the basis of race or ethnicity, and people should not either (“Data shows public schools are resegregating. Here’s why that’s a problem for the next generation,” March 9-16). That’s true whether the distinctions are made for old-fashioned, politically incorrect reasons, or now-fashionable, politically correct reasons.

Racial essentialism is a bad thing, and using race as a proxy for how people think or what experiences they have had is a bad thing, too. Treat people as individuals, and quit obsessing over skin color. It’s not that complicated or difficult, and it’s the only way forward as America becomes increasingly multiracial and multiethnic. 

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Next, a couple of Federalist Society telefora/podcasts of note. 

The first is an interesting discussion of the role of the White House counsel between two former comrades-in-arms of mine from my days in the Justice Department:  Tim Flanigan and Boyden Gray.  It’s an important job, not least because of its role in judicial selection.  I called in with a question on this topic, which you can hear at the 0:25:20 mark.

The second teleforum/podcast, which you can listen to here, is a discussion between Joshua Thompson of Pacific Legal Foundation and me of a case I recently wrote about to you, Hardie v. NCAA

To recap:  The Ninth Circuit earlier this year heard oral argument in challenge to 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.

As a sidebar here, let me note that there is always a cost when the government tells private sector actors how to run their businesses.  When the government cannot even claim that it is doing so to prevent actual discrimination, that cost is prohibitive.  George Leef develops a similar theme here.

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.

Finally, bear in mind that the disparate-impact approach requires race-based decision-making rather than prohibiting it. That is, it means that a decisionmaker 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, my organization joined an amicus brief filed by Pacific Legal Foundation, 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.