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Center for Equal Opportunity Praises Court's School Decisions

The Center for Equal Opportunity praised the Supreme Court's decisions in the Seattle and Louisville school cases today.

CEO chairman Linda Chavez said: "Today's decisions vindicate the principle in Brown v. Board of Education that schoolchildren should not be assigned to schools on the basis of skin color. It is a victory for parents and students of all races."

CEO president and general counsel Roger Clegg said: "As America becomes increasingly a multiracial and multiethnic society, it also becomes more and more untenable to have laws that categorize our people because of race and national origin."

Both Chavez and Clegg said that they hoped that the Bush administration, which had filed briefs in the cases urging the Court to strike down the race-based student assignments, would use the decisions to dismantle racial and ethnic preferences still being used by the federal government, and to attack racial and ethnic discrimination elsewhere.

CEO had joined an amicus brief with the Pacific Legal Foundation in urging the Court to grant review in the cases, and then joined again with PLF after the Court had granted review, urging the Court to declare the race-based student assignment policies in the two school districts to be unconstitutional.
The Center for Equal Opportunity is a nonprofit, nonpartisan research and educational foundation that
focuses on civil rights, bilingual education, and immigration and assimilation issues nationwide.

Roger Clegg testifies regarding H.R. 40

TESTIMONY OF ROGER CLEGG, PRESIDENT AND GENERAL COUNSEL AT AN OVERSIGHT HEARING ON THE LEGACY OF THE TRANS-ATLANTIC SLAVE TRADE BEFORE THE HOUSE JUDICIARY COMMITTEE, SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS, AND CIVIL LIBERTIES

December 18, 2007
Rayburn House Office Building, Room 2141

Thank you very much, Mr. Chairman, for the opportunity to testify today. My name is Roger Clegg, and I am president and general counsel of the Center for Equal Opportunity, a nonprofit research and educational organization that is based in Falls Church, Virginia. Our chairman is Linda Chavez, and our focus is on public policy issues that involve race and ethnicity, such as civil rights, bilingual education, and immigration and assimilation. I should also note that I was a deputy in the U.S. Department of Justice's Civil Rights Division for four years, from 1987 to 1991.

Overview

The discussion today of the legacy of the trans-Atlantic slave trade is intended, I presume, to help lay the groundwork for favorable consideration of H.R. 40, the "Commission to Study Reparation Proposals for African-Americans Act." And the enterprise that H.R. 40 would have us embark on, in turn, is as follows: First, a commission would determine what effects slavery and post-slavery discrimination had on African Americans and what "lingering negative effects" it continues to have on them; and then, second, it would suggest possible remedies for those effects. The two remedies that are explicitly mentioned are an apology and some form of compensation.

There are any number of problems with this enterprise, and I would like briefly to discuss some of them in my testimony today. (Some of the points I will make are also expressed, often in more detail, in a dialogue I have written on this topic, a version of which was published inEngage magazine, and which I have included as an appendix to my testimony; I've also included an op-ed I wrote on a recent Chicago ordinance requiring city contractors to document any slavery-related business in the antebellum era.)

This Is an Unnecessary and Hopeless Task for Such a Government Commission

First, this research project is ill-suited for a government commission. H.R. 40 says that "sufficient inquiry has not been made into the effects of the institution of slavery on living African-Americans and society in the United States." I am not sure what that statement is based on, and I am not a professional historian. But as a lay reader and a civil rights lawyer, it seems to me that there is no shortage of books and articles about slavery, and discrimination, and the problems facing the African American community today, and the way all these intersect. I am not declaring that there has been "sufficient inquiry"; just that there has been a great deal and that it continues--and that, given the intrinsic interest of these topics, especially among those in the academy, it will likely continue for the foreseeable future.

What I would declare, moreover, is that this inquiry will never end, and it will be a long time before anyone would presume to call the inquiry "sufficient." Few historical inquiries ever are: There is always some new angle to explore. Further, the conclusions that historians will draw will always be incomplete, imperfect, and challenged by contemporary and future historians. That is the nature of historical scholarship, especially for issues as complex as this one.

H.R. 40 suggests, on the other hand, that something like a definitive answer will be possible if the government takes $8 million, hires seven "especially qualified" people, and gives them a year to figure it all out. This is, of course, absurd.

No one will dispute that slavery and Jim Crow were horrible and inhumane; no one will dispute that discrimination still exists, though only a delusional person would deny that America has made radical, dramatic, inspiring progress in the last 40 years-that its society has truly been transformed in an astonishingly short period of time. But it is impossible to say how much of the present is the result of one particular kind of event in the past. Only someone very arrogant or very foolish would make such a pronouncement.

Let me give just one example. The principal hurdle facing the African American community today is the fact that 7 out of 10 African Americans are born out of wedlock. Just about any social problem you can name-crime, drugs, dropping out of school, doing poorly in school, and so forth-has a strong correlation with growing up in a home without a father. And it is very hard to argue that this problem is traceable to slavery or Jim Crow, since illegitimacy rates started to skyrocket in the African American community just at the time that Jim Crow was starting to crumble.

Given that, how can anyone say with any confidence that such-and-such amount of such-and-such a social problem facing African Americans must be due to slavery? It cannot be done.

Race-Based Compensation Would Be Both Illogical and Unconstitutional

But let's suppose that, nonetheless, the commission decides that it can be done. Let's suppose that this commission says, "Forty-six percent of the poverty in the African American community today can be traced to slavery and discrimination, forty-five percent is caused by illegitimacy, and the remaining nine percent is just bad luck," or some such silly thing. Or let's suppose that it says something less silly, but so obvious that it does not take a government commission to figure it out--something like, "To some significant extent, the disproportionate amount of poverty facing the African American community today can be traced to slavery and the discrimination its members faced."

Would it follow that some sort of "compensation"--one of the two remedies H.R. 40 explicitly asks the commission to consider--ought to be paid to African Americans? No. It certainly wouldn't make sense to pay compensation to African Americans who are not living in poverty. It wouldn't make sense to pay compensation to African Americans who are living in poverty if that poverty was not caused by slavery and Jim Crow-to give an obvious example, to African Americans who just immigrated here. Yet requiring a particular person to prove his slave ancestry leads to many problems (as discussed in Appendix A); presuming slave ancestry because of a person's appearance raises many problems, too; and there are problems with simply taking people at their word as well.

Also, why should an African American who could trace his poverty to slavery be entitled to compensation over, say, a poor American Indian who could not but could trace it to some other historical wrong (in this case, say, a broken treaty)? Or a poor Latino or a poor Asian or even a poor white? Any of them might be able to trace his poverty to somehistorical wrong.

But most fundamentally, why does it matter whether the poverty is traceable to a historical wrong? Suppose you have two children. One could show somehow that the reason he was poor was because of the discrimination his family suffered. The other child is poor for no reason except his mother and father just immigrated to this country from a poverty-stricken homeland. Is the government supposed to say, "We view the first child's poverty as a problem of federal concern, but not the second child's"?

Of course not. There is no reason why eligibility for a social program ought to hinge on whether a citizen can trace his need for the program to this or that historical cause.

If we design social programs to help disadvantaged people, and if disadvantaged people are disproportionately African American because of the discrimination that they have disproportionately suffered, then African Americans disproportionately will be eligible for those programs. And, indeed, that is the case today. More than that makes no sense. And if the commission simply recommends more social programs that are not race-based, then it is even harder to see why its historical focus should be on one particular subset of one particular racial group.

If, finally, we were to make a social program available to those of one race and not to others, there would be serious constitutional problems. Presumably the justification for the program would be remedial, but the Supreme Court has--quite rightly--rejected general claims of societal discrimination as not sufficiently compelling to justify racial classifications.

An Apology Would Make No Sense Either

As for an apology, the second possible remedy listed by H.R. 40: The bill asks "Whether the Government of the United States should offer a formal apology on behalf of the people of the United States for the perpetuation of gross human rights violations on African slaves and their descendants."

This is, at best, an odd apology. What would really be appropriate, of course, is for the slave-traders and the slave-masters to apologize to the slaves-but all these folks have long since passed on to their just rewards.

So instead we have the U.S. government (which actually ended slavery, at the cost of much blood and treasure) apologizing on behalf of today's American people (none of whom ever owned slaves, and most of whom never had ancestors who did, either) to ... whom? The bill does not say. Maybe the idea is just to apologize to ourselves, but that seems rather strange. Presumably the idea is to apologize to living African Americans. But these African Americans are not slaves; many are descended from slaves, but many are not; many of the former-maybe most now-are descended from both slaves and slave-owners.

Mr. Chairman, I cannot resist pointing out that, if there is anyone in the United States today from whom an apology for slavery and Jim Crow would be appropriate, it would be, not the U.S. government, and certainly not the American people-but the Democratic Party. It, after all, was historically the party of slavery, secession, and segregation.

But let's be honest: Inevitably, such apologies are intended and interpreted as whites apologizing to blacks for slavery. (I wonder what Asians and Latinos, as well as American Indians, think of this theater?) But no white today is or ever was a slaveholder; no black today is or ever was a slave. What's the point of one apologizing to the other?

Everyone has an ancestor who was wronged by someone else's ancestor; there is no point in trying to find a thread for each present-day misfortune in an individual's life that can be followed back through the decades to a particular misdeed; and anyone's poverty today likely has many causes-some old, some recent, some other people's fault, some one's own. Nobody nowadays thinks slavery was anything but an abomination; nobody learns anything from this charade.

We are told that these apologies will help to bring closure, help enable us to move on. Nonsense-and that is not their intent, at least for many people. The idea is to reopen wounds, to keep grievance alive, to keep white people on the hook. An obsession with past wrongs, to the extent that present opportunity and future promise are ignored or slighted, is a bad thing.

A great strength of Americans is that we are forward looking. The trouble with slavery apologies is that they are designed to make whites feel guilty and to urge blacks to think of themselves as victims. Neither emotion is valid in these closing days of the year 2007; both are bad for race relations. In particular, the last thing an African American needs in 2007 is an excuse to fail. As individual white people will go about their business--and Latinos and Asians and Arab Americans and American Indians--individual black people will be left with the same choice they've had for years: embrace self-reliance and responsibility, or fail and blame it on others.

Conclusion

All of this is true not just for the apology issue but also for the entire enterprise that H.R. 40 would embark on: That is, it would accomplish nothing and would cost much. And I don't mean monetary costs, but social costs: Specifically, the poisonous effect it would have a racial relations, and the pernicious message it would send, in particular, to those in the African American community, that their focus should be on what was done to them in the past, rather than the opportunities they have now.

Thank you again, Mr. Chairman, for the opportunity to testify today. I would be happy to try to answer any questions the Subcommittee may have for me.

Appendix A:

A Dialogue on Reparations
by Roger Clegg (adapted from his Engage magazine article, May 2003)

A. Should African Americans be paid reparations for slavery?

B. The short answer is no, but first let's unpack that question. Do you mean only for slavery?--because most reparations advocates also think that reparations are appropriate for post-slavery discrimination.

A. Oh, yes. That should be included, too.

B. But in that case, why limit it to blacks? Other groups have been discriminated against as well.

A. But not as much, wouldn't you agree?

B. I suppose, although you could make a case that the treatment of American Indians has been pretty bad. And Japanese Americans were the only ones actually interned.

A. That's true; those are the two others that are especially bad. But the existence of treaties and reservations makes it possible to consider American Indians separately, and of course the Japanese Americans who were interned already have received reparations.

B. Fair enough. You would concede that other groups have been discriminated against, too, obviously, but your point is that they didn't suffer under an actual Jim Crow system?

A. Correct.

B. But Latino advocates would argue that there has been school and housing segregation, ethnic gerrymandering, and employment discrimination against them. So might Asian advocates. It is certainly defensible to draw a line between blacks and everyone else. But I want to make the point that if you open the door to reparations for blacks for non-slavery discrimination, then others will try to come through that door.

A. Well, what if we limit it to reparations just for slavery, then?

B. This will complicate matters considerably. For instance, it then becomes important that only those with slave ancestors be compensated. Blacks who immigrated after the 13th Amendment (December 6, 1865) cannot really claim to have been victims of slavery, nor can their descendants, nor can the descendants of black freemen.

A. But aren't the vast majority of African Americans descendants of slaves?

B. Good question. I don't know. You would agree that the higher the percentage who aren't, the more problematic reparations for all African Americans is, right?

A. Yes, but you would agree that if the percentage is high enough, the assumption that all blacks qualify is a reasonable one?

B. Reasonable, yes, although not so compelling and narrowly tailored-as the lawyers put it-to pass strict scrutiny. Let me also ask you this. How will we prove who is an African American? That is, if someone claims his or her share of reparations, how will you determine if they are in fact an African American.

A. Won't just looking at the person be good enough in most cases?

B. It depends on how honest you think people are. If you start handing out $50,000 checks for anyone who claims to be an African American, and you take everyone at his word, I predict you will have some problems with false claims. To put it mildly.

A. Let's have a two-part test. If you can tell the person is black just by looking at them, that's good enough. If not, then the person has to provide some additional proof.

B. So let me get this straight. You'll have a line of people, and some government bureaucrat will size each one up. He'll judge how dark their skin is-maybe by holding up a paper grocery bag next to it-how kinky or nappy their hair is, the shape of their noses and lips, that sort of thing? And the ones that are judged to be black will get their check?

A. I guess that's about right.

B. Yuck. And the ones who aren't judged to be black, even though they assert they are, will then have to prove it in some way. DNA tests? Genealogical records? Sworn affidavits?

A. Something like that.

B. Yuck again. And, as I pointed out earlier, that will be more difficult if you have to show that you are a slave's descendant. Anyway, will the government be using a one-drop rule? That is, do you get your check even if you have only one African American ancestor, as opposed to being, say, at least half African American?

A. I don't see any alternative. And probably a person and his or her ancestors will have suffered a fair amount of discrimination under the one-drop rule.

B. All right. I agree that it would be an even bigger mess if you had to trace back not just to one ancestor but to several. By the way, how are you going to define African American?

A. Someone whose ancestors came from Africa.

B. But it can't be just anywhere in Africa, right? I mean, white South Africans won't do, nor would North African Arabs, right? Back to my line example, suppose one of the people standing in line admits that he doesn't "look black," but says that's just because his African ancestors were Afrikaner or Egyptian or Moroccan. And what if he can prove it?

A. Well, I can see that it would be a problem if we had to prove immigration from a specific country. Maybe the DNA people can help us out.

B. Maybe. But there's a certain irony here, since generally those supporting reparations also believe that race is a social construct without any true basis in biological science.

A. Look, I see your point, but many reparations advocates make clear that they aren't proposing that individual checks be cut. Instead, they want social programs put in place as the reparations. So you aren't going to have this problem of whites claiming to be blacks.

B. Granted, there will be less fraud if what you're offering in a place in a special school or job training facility rather than a $50,000 check.

A. A lot less. The payoff is less, and the whites who might otherwise be interested are going to be poor or working class, and they aren't going to want to label themselves black before the whole world. Their friends will see them going to the school or whatever, and will say, "Oh, I see you've got some plantation blood." They won't like that.

B. Maybe, although you're doing some stereotyping yourself here. Plus, it's a fair question why a poor or working class white-whose ancestors probably suffered some, too, one way or another-shouldn't be eligible for the programs anyhow. But that brings us to the basic question: Should society pay reparations to all blacks, and only to blacks?

A. The discrimination suffered by African Americans was especially cruel, and so special compensation is required.

B. Well, that doesn't make sense. The special cruelty isn't present now, and wasn't suffered by most blacks living now. The median age of African Americans is about 30, which means a birth-date after the end of the Jim Crow era. So it can't be the special cruelty. It must be that the economic impact was especially severe and long-lasting.

A. Whatever.

B. But if it's the economic impact that matters, why does it matter what its origins were? I mean, you have one child whose grandfather was lynched, and another child whose grandparents were drowned when their boat sank in the South China Sea. Both live in poverty. Why do we make some programs available to one but not to the other?

A. America didn't sink the boat. But it did the lynching. Remember it is reparations we are talking about. Reparations are paid by the wrongdoer to the victim. America is responsible for slavery and Jim Crow discrimination in a way it is not responsible for other calamities that some people have suffered. We owe something to blacks, in a way we don't to anyone else.

B. What do you mean "we"? The American people now-its taxpayers, voters, officials, and so forth-are in no way responsible for slavery or Jim Crow discrimination. Even if you say that it was the fault of American federal and state governments and corporations and other non-human entities that were around then and are around now, the reparations are going to have to come out of the pockets of those who don'towe African Americans for exploitation, because they weren't around when the exploitation happened.

A. But they still enjoy the profits from that exploitation.

B. Let's talk about that. If you mean that America as a whole was built on the backs of slave labor-an exaggeration, but I'll concede that certainly slave labor was one kind of labor that helped build America-it is true that we still enjoy the results of slave labor, but then that is no less true for blacks than for whites. That is, slaves may have cleared the farmland that now feeds us, but it feeds us black and white alike.

A. But whites profited more from it than blacks did.

B. Certainly slaveowners profited from it more than slaves did. But you're assuming that the class of 19th century slaveowners and slaves is the same as the class of 21st century whites (really, nonblacks) and blacks. The groups are completely different.

A. You haven't made the argument that slavery actually benefited blacks, because the 21stcentury descendants of slaves are better off than 21stcentury blacks still living in Africa.

B. I actually think that's a legitimate argument, if we start playing the game of what Thomas Sowell calls "cosmic justice." That's where the government tries to ascertain how much wealth a person would have if nothing unfair happened to any of one's ancestors. The problem with the game, of course, is that it is impossible to untangle the past. There's no doubt that slavery and discrimination have, in the aggregate, diminished the wealth of African Americans. But so have disproportionately high rates of illegitimacy, and substance abuse, and crime, and a failure to take advantage of the educational, employment, and business opportunities that were available. To be sure, these bad life-decisions were often a result of discrimination, but that only confirms how impossible it is to say that group X has less wealth than group non-X, and that Y percent of this gap is because of bad things that group non-X did and 100 minus Y percent is due to bad things that X themselves did. It can't be done. But if you do decide to play this game then, yes, I think it is legitimate to point out that, but for slavery, group X would actually have much less wealth than they do now.

Let me also point out that most of the wealth that the nonblacks have was acquired after slavery. Lots of nonblacks-not just Asians and Latinos, but the Irish and Italians, for instance-didn't arrive here until after slavery. And lots of people who did have some wealth in the early 20th century saw it wiped out in the Great Depression. So telling the descendants of these people that they have to pay out a chunk of their wealth in reparations for slavery doesn't make a lot of sense.

Conversely, the blacks who are paid reparations will include many who actually have more money than the average nonblack, and many who are not descendants of slaves-whose ancestors actually immigrated to the United States quite recently-as well as many whose lack of wealth is more their own fault than that of some slaveowner in the distant past.

A. Enough! This is all logic chopping. The fact of the matter is that slavery and Jim Crow discrimination were uniquely grievous wrongs, that they did result in present blacks having less money than they would have if they had been treated decently, and that it is only fair that they be compensated for these wrongs.

B. I think the points I've raised are more fundamental and more valid than mere logic chopping. But even if you think that, after weighing my arguments against yours, there remain some potential benefits to reparations, you also have to weigh the costs.

A. Such as?

B. Reparations will be absolutely poisonous to race relations. They will increase white resentment, and they will increase blacks' victim mentality. Those are the last things we need. As discussed, there are also serious practical problems in deciding who is eligible for the program; other groups will soon demand reparations, too; and I will guarantee you that, once the program is begun, it will never end, and the demands for more and more reparations will only increase over time, and never diminish.

Appendix B:

TheBizarre Campaign To Eliminate "Profiteers of Slavery":

Practical Questions about Chicago Ordinance Are Overwhelming

by Roger Clegg (from Human Events, January 12, 2003)

Last fall, according to itsTribune, Chicago "became the first major city in the nation" to pass a "groundbreaking ordinance requiring all businesses vying for city contracts to search their records and disclose whether they profited from slavery." Cleveland and New York City are now considering similar laws.

To quote the ordinance itself, any such company "must complete an affidavit verifying that the contractor has searched any and all records of the company or any predecessor company regarding records of investments or profits from slavery or slaveholder insurance policies during the slavery era. The names of any slaves or slaveholders described in those records must be disclosed in the affidavit."

The last sentence is straightforward enough, and will be useful for plaintiffs' lawyers looking for clients. But beyond that, I have a few questions about the meaning of the phrase in the first sentence, "investments or profits from slavery or slaveholder insurance policies."

For starters, may we assume that it's not enough for a company just to look to see if there is a line in the annual report that says, "Profit from slavery: $1,305.16"? That would be pretty unlikely. So are we to assume that the company is supposed to try to figure out now for itself what the profit was, or at least to collect the relevant records? But the calculations won't be easy, nor for that matter defining which records are relevant.

I think I know what "slaveholder insurance policies" are, but how do you calculate "profits" from them? You can't just add up the premiums. You also have to subtract out the payments, right? How about the company's overhead? Do you have to prorate that, since the policy also probably wrote non-slavery policies? Isn't that going to be awfully hard to do for 140-year-old transactions?

But the real problem is what is meant by "profits from slavery" or "investments" from slavery. Buying and selling slaves is understandable, but what if you bought cotton from a plantation? What if you bought cloth from an English company that bought cotton from a plantation? What if you bought shirts from a company that bought cloth from an English company that bought cotton from the plantation? Is the company supposed to collect all this information?

What if you sold a plow to a plantation? What if you sold a plow to a plantation but you didn't know then or don't know now if it had slaves on it? What if you manufactured plows and sold one to a retailer who sold one to a plantation? What if you don't know whether the retailer sold plows to plantations or not, or if there were slaves on them?

What if you sold a watch or a newspaper or a train ticket to a slaveowner? What if didn't keep track of the professions of those to whom you sold these items?

And how, once again, does one calculate the "profits" or "investments" from all this? You can't just add up the sales; you also have to subtract out the costs, right? How do you tell how much of the profit is from slavery and how much is from some other factor? If you sold a really ingenious plow to a plantation, was the profit because of slavery or because of your ingenuity?

All right. Now suppose that we figure all this out and collect all the information. What precisely is the city going to do with it?

Either it will refuse to do business with companies that "profited" or "invested" in slavery, or not. If the latter, then this whole exercise is pointless, isn't it? If the former, then how much profit triggers the boycott? A penny? A million dollars? Somewhere in between?

And what, precisely, is the boycott supposed to accomplish? Is it supposed to punish the company? For what--for engaging in what were then perfectly legal activities? For decisions made by people long dead? For profits distributed to shareholders who spent them God knows where and are also long dead?

And, of course, the city will also be punished. After all, if the city refuses to do business with a company with whom it would otherwise have done so, then the city is going to lose money. The company made the city the best offer, but the city decides to pay more by contracting with someone else. So the city--and its taxpayers--will lose out, too. What is that supposed to accomplish?

Just asking. It was a 44-0 vote by the city council, so I'm sure someone has the answers. This couldn't have been political posturing by all 44, right? Or shouldn't I ask?

Appendix C:

Other Links of Interest

Peter H. Schuck, "Slavery Reparations: A Misguided Movement":

http://jurist.law.pitt.edu/forum/forumnew78.php

Walter E. Williams, "Proclamation of Amnesty and Pardon Granted to All Persons of European Descent":

http://www.gmu.edu/departments/economics/wew/gift.html

David Horowitz, "Ten Reasons Why Reparations for Blacks Is a Bad Idea for Blacks--and Racist Too":

http://www.frontpagemag.com/Articles/Read.aspx?GUID=%7B23D875B0-65A3-44A3-A27B-14831CCB4107%7D


Linda Chavez, Chairman of the Center for Equal Opportunity (three syndicated columns):

http://www.jewishworldreview.com/cols/chavez.html

http://www.jewishworldreview.com/cols/chavez110900.asp

http://www.townhall.com/columnists/LindaChavez/2002/02/26/the_reparations_debate

Disparate Impact in Kansas City

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
Secretary 
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!

Sincerely,

Roger Clegg
President and General Counsel
Center for Equal Opportunity

Pretty Good End to a Really Bad Case

The Ninth Circuit issued a favorable opinion this summer in Hardie v. NCAA, a case raising the important question of whether “disparate impact” liability is cognizable under Title II of the Civil Rights Act. The Ninth Circuit didn’t answer the broad question of whether Title II ever recognizes such claims. It held instead that NCAA’s ban on felon-coaches in its high school tournaments didn’t amount to a disparate impact violation, even if Title II might under other circumstances encompass such claims.

In a cogent concurring opinion, Judge Faber noted that although NCAA did not argue the issue on appeal, “amici Pacific Legal Foundation (PLF), Competitive Enterprise Institute (CEI), and the Center for Equal Opportunity (CEO) have argued most ably that Title II does not authorize disparate-impact liability.”

The concurring opinion echoed the arguments the Center for Equal Opportunity made in its amicus brief, filed with PLF and CEI. In particular, the opinion adopted our argument that Congress must provide a clear statement of its intent whenever it wishes to impose disparate impact liability (which it didn’t do in Title II), because disparate impact liability raises significant constitutional concerns.

The Equal Protection Clause requires the government to treat everyone as individuals. Disparate impact liability, however, requires the government to treat everyone as components of a racial class. The Constitution cannot countenance such a result.

The Ninth Circuit did not address the important constitutional question in Hardie. But rest assured that the court will have to address that question one day. When that day comes, the Center for Equal Opportunity will be on the front line to defend the constitutional guarantee of equal protection.

Special thanks to PLF’s lawyers in this case (and for much of the description of the case above).  For some additional background, here’s what I wrote about the case at the time the case was argued:

The Ninth Circuit this 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.

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, 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.

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The New York Times had a big story last week about how African Americans and Latinos are still “underrepresented” at the nation’s top universities, despite decades of receiving admissions preferences.  The Times’s use of statistics is flawed, and I may write more about that and other problems with the article in the future, but for now I’d make this point:  So what? 

That is, even if the basic point of the Times story is true, then what are we to conclude from this?  Certainly not that, therefore, racial and ethnic preferences in university admissions ought to continue. 

In the first place, opposition to such discrimination has never been based on achieving or preventing some statistical result.  To the contrary:  It’s because discrimination is bad thing, period. 

In the second place, if racial and ethnic preferences are not achieving the promised results, then that suggests that those who want to improve African American numbers, in particular, ought to be looking elsewhere.  And the truth of the matter is that conservatives like me have long said that, when you think about it, a child’s environment can, like Gaul, be divided into three big parts, and in all three African Americans face special problems. 

There are the child’s peers, and the pernicious claim that academic success is “acting white” is a real problem, as Stuart Buck demonstrated in his excellent book of that name.  There are the child’s schools, and it’s true that these children and their parents should have more choice in selecting schools (which the Left generally opposes).  And — most important of all by far — there is the child’s family, and seven out of ten African Americans are born out-of-wedlock, with bad effects on the child’s educational (and other life) prospects. 

Disparate Impact and Criminal Justice

The Obama administration’s efforts to apply “disparate impact” theory to the criminal justice system continue.  In a “Dear Colleague” letter to state and local courts last week, the administration warned, “In court systems receiving federal funds, these practices [i.e., the enforcement of fines and fees] may also violate Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, when they unnecessarily impose disparate harm on the basis of race or national origin.”

The trouble is that the enforcement of just about any criminal law is going to have a disproportionate impact on some racial or ethnic group — unless, perversely, law enforcement officials engage in race-based decisionmaking in their enforcement of those laws.  But, of course, politically correct race-based decisionmaking by government officials is precisely what this administration likes and wants. 

Not incidentally, the administration is quite wrong to say that Title VI incorporates a “disparate impact” standard; the Supreme Court has ruled repeatedly that it does not.  But unfortunately that has not stopped the Obama administration from aggressively using its Title VI regulations and rules in this way.

A Pleasant Surprise – There was a pleasant surprise in Inside Higher Ed this week:  an article, involving student discipline, that does not complain about racial discrimination.  “Inspired by findings of bias at the K-12 level, a study sought to see if higher ed officials would impose harsher penalties on hypothetical black students than on white ones” — and found that, no, they did not. 

By the way, I noted that, while it’s true that there are studies to the contrary regard K-12 school discipline, “There's also evidence that the racial disparities in K-12 suspensions are explained by differences in behavior rather than discrimination.”  

But this fact is routinely ignored, I’m afraid.  For example, a New York Times story last week headlined “Disparities in Discipline Found in Charter Schools” did not note any effort to control for this variable.

Politics and Hypocrisy in the Merrick Garland Nomination – There’s been lots of ink spilled on President Obama’s nomination of Merrick Garland to the Supreme Court.  I’ll just make two quick points.

First, in listening to the President’s speech making the announcement, I have to say that it was really, really rich to hear any liberal bemoaning politics getting mixed into the judiciary and to hear this president in particular lecturing anyone on following the Constitution. 

Second, and speaking of which, I wonder if it is just a coincidence that the announcement was made right after the big primary results involving Ohio, Florida, and several other states.

Consider:  If it were more certain that Donald Trump would be the Republican nominee, as it would have been had he won Ohio, then perhaps there would have been less reason to push aggressively a (relatively) moderate appointment this year — that is, less reason to think that someone other than Hillary Clinton would be making the appointment if it waited until next year, and less reason to fear that the appointment could be made by Ted Cruz, an actual conservative. 

Lamar Alexander versus the EEOC – Finally, I want to give a lengthy but well-deseved shout-out this week to Sen. Lamar Alexander, who has been rightfully aggressive in keeping tabs on the Obama administration’s Equal Employment Opportunity Commission.
Last week he introduced legislation to subject the Obama administration to its own proposal to increase by 20 times the employment data it currently collects from each of the 61,000 private employers on their 63 million employees.

Sen. Alexander said, “This agency is supposed to be protecting American workers from discrimination. Instead it’s coming up with an absurd rule forcing employers to submit new pay data on 63 million private sector employees. This legislation would give the EEOC a dose of its own medicine — requiring them to collect the same data on federal employees, to see how much that costs in time and money before it makes that requirement of 61,000 private sector employers.”

Currently, according to Sen. Alexander’s press release, the EEOC requires employers with 100 or more employees to submit to the agency 180 different pieces of information about those employees each year. Under the EEOC’s new rule, that number would increase by 20 times, from 180 to 3,660 for each employer’s establishment.

The new bill, titled the “EEOC Reform Act,” would require the EEOC to calculate the cost of imposing its own rule on the federal government so that the EEOC better understands the burden the rule adds to private employers.

Alexander noted that it’s “especially ironic that the rule has been submitted for review under the Paperwork Reduction Act.”

Alexander added that what the EEOC should instead be doing is working through its backlog of more than 76,000 unresolved complaints of discrimination.

This new rule is likely to worsen that backlog, Alexander said, as the agency cannot handle its current complaints of discrimination and will now be sifting through the millions of pieces of new data.

Alexander also noted that, in 2014, he released a staff report on the EEOC that found the agency was pursuing high-profile lawsuits without a complaint, while facing a backlog of almost 71,000 unresolved complaints of discrimination from individuals who filed charges (that number has since increased to more than 76,000).

Sen. Alexander’s new bill would require the EEOC to reduce its backlog from 76,000 unresolved complaints to 3,660 — the same number of unresolved cases as the number of data points required by the new EEOC rule — before it can impose the proposed rule.

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.

The Center for Equal Opportunity on “Disparate Impact” at Cato 

The libertarian Cato Institute was kind enough to ask me to contribute an article to its annual Cato Supreme Court Review, inviting me to write on the Supreme Court’s recent (and unfortunate) decision to allow “disparate impact” causes of action under the Fair Housing Act. 

So I thought I would excerpt some of that article for this week’s email, and have done so below.  You can read the full article here

I should also note that last week I spoke at Cato about the case on a civil-rights panel.  You can watch the event here (“Panel II:  Civil Rights”); I’m introduced starting at the 0:22:10 mark, and my discussion runs from 0:23:40 through 0:40:25. 

*          *          *

Introduction

In Texas Department of Housing and Community Affairs v. Inclusive Communities Project, the Supreme Court at last resolved the issue of whether “disparate impact” causes of action may be brought under the Fair Housing Act, which was first passed in 1968 and then substantially amended and expanded in 1988. In brief, disparate impact cases are based on an inference of illegal discrimination if a defendant’s actions have a disproportionate adverse effect on individuals in a protected class, such as race. By contrast, disparate treatment cases, which are indisputably covered by the Act, are triggered when a defendant’s actions arise out of a discriminatory motive or intent.
… Justice Anthony Kennedy wrote the 5-4 majority opinion in Inclusive Communities, in which he was joined by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan. Justice Alito’s dissent was joined by the remaining justices; Justice Clarence Thomas also wrote a separate dissenting opinion …

The Court’s decision is disappointing. It fails to follow the clear language of the statute and will not only result in unfair liability for many defendants, but will encourage race-based decisionmaking in the housing area—exactly what the Fair Housing Act was meant to prohibit. The only silver linings are that Justice Kennedy’s opinion itself recognizes these problems, and some of the language toward the end might be useful in stemming the worst abuses.

To elaborate: The question presented in this case was, “Are disparate-impact claims cognizable under the Fair Housing Act?” Under a disparate-impact claim, discriminatory motive is irrelevant: It need not be alleged or proved, and it doesn’t even matter if the defendant proves that there was no actual disparate treatment. If a policy or procedure results in a disproportion of some sort—on the basis not only of race, color, or national origin but also (under the FHA) of religion, sex, or familial status (that is, having children)—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. This numbers-driven, we-don’t-much-care-about-your-reasons approach inevitably results in pushing potential defendants away from perfectly legitimate and race-neutral policies and toward race-based decisionmaking: again, just the opposite of what civil-rights laws are supposed to do.

This article will begin by summarizing the various opinions in the case, and will then explain some of the problems with the disparate-impact approach, both generally and with respect to housing discrimination in particular. It will then discuss what might be done to address these problems in the future, through litigation and through legislation.

...

Problems with the Disparate-Impact Approach

 In General
As noted, under a disparate-impact claim of discrimination, discriminatory motive is irrelevant: It need not be alleged or 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, 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.

Now, suppose that you are a potential defendant and that you have some non-discriminatory selection criterion that has helped you run your business well, but the criterion has a disparate impact on some group. You know you are vulnerable to a lawsuit, which you may or may not win, depending on the judge or jury you draw, and you know that lawsuits are expensive, win or lose. If you don’t want to get sued—and who does?—the potential of a disparate-impact lawsuit is going to push you to do one of several things, none of which is good. You might keep the criterion but apply it in a way that gets your numbers right: In other words, you will adopt surreptitious quotas. Or you might get rid of the criterion altogether, and just accept the fact that your business will not be run quite as well as it could be. Or you might decide to replace the old criterion with a new one, which you will choose and/or apply in a race-conscious way. You might, that is, now choose a criterion because of the racial outcomes that will result, or choose some criterion that can be applied in a biased way so that the resulting racial double standard will ensure that the numbers come out right. No matter what, you are no longer using the criterion you freely chose because you thought it to be the best, but are instead weighing race—directly or indirectly—in what you do. 

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. In addition to this moral dilemma, there is this overwhelming practical one: There is probably no selection or sorting criterion that does not have a disparate impact on some group or subgroup.

And 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 or ethnic groups, there are three things that can be done. First, the standards can be relaxed for those groups. That’s what racial preferences do. Second, the government or aggrieved private party can attack the standards themselves. That’s what the disparate-impact approach to enforcement does. Third, one can examine the underlying reason 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 that. But this option holds little interest on the political left.

Speaking of which, the Obama administration has made no secret of its love for disparate-impact civil-rights enforcement, and has been aggressive in applying it to every imaginable situation. In employment, for example, the government complains if fire or police departments administer physical or written tests that have politically incorrect results, or if companies use criminal background checks; in voting, it objects if voter ID is required; in education, it is hostile to school discipline policies if they have a disproportionate racial or ethnic result; it has 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 is also employed to require the use of a foreign language—on driver’s license exams, for example—on the theory that using only English might have a disproportionate effect on the basis of national origin. And it has been used to pressure banks with regard to their lending requirements, even though many believe this to have been a contributing cause of the mortgage meltdown and the following recession.

III. Going Forward

Litigation

While the Supreme Court’s ruling here is misguided, potential litigants should not lose sight of this counterintuitive fact: The law is actually better now than it was before Justice Kennedy wrote the opinion.

This is true partly because the bar was so low: All the courts of appeals to entertain this issue had adopted this approach, too, and the Obama administration and its allies in the civil rights establishment were already interpreting the law this way. So things could not have gotten a lot worse, no matter what the Court had done.

It is also true, however, that the law is now better because Justice Kennedy’s opinion recognizes that the disparate-impact approach can lead to very bad results. … [T]he Court has now set some limits on the law that will be useful. For example, Kennedy warns the lower courts against “second-guess[ing]” the nondiscriminatory reasons for challenged policies, requires a “robust causality requirement” rather than relying simply on racial disproportions, recognizes that “racial quotas” and “racial considerations” and “abusive . . . claims” can result from threatened and actual lawsuits, cautions that any “remedial orders must be consistent with the Constitution.” He all but says that he expects the plaintiffs to lose in this case. He even calls Justice Alito’s dissent, which of course makes similar points, “well-stated.”

Given that the Court was unanimous, then, in recognizing the constitutional problems and bad policy results that can arise from the disparate-impact approach, litigators should continue to press courts to reject or at least limit the approach.

For example, the door is still open for courts to reject disparate impact use under the Equal Credit Opportunity Act, to limit it under Section 2 of the Voting Rights Act, and to strike down disparate-impact regulations that have been promulgated under Title VI of the 1964 Civil Rights Act. (Those regulations have been used, for example, to challenge school discipline, policing policies, and English-language requirements where they have a disproportionate effect on this-or-that racial or ethnic group.)

Legislation

While much can be accomplished through litigation in stemming the abuses of the disparate-impact approach to civil rights enforcement, ultimately there is no substitution for action by Congress, which ought now to amend the Fair Housing Act. And, while at it, Congress should clarify that, in other contexts as well, the disparate-impact approach is invalid.  Most civil rights laws have no “disparate impact” provisions—rather, they prohibit actual disparate treatment—but they have been expanded to include disparate impact through agency interpretation and unwarranted court rulings. The FHA is, of course, a case in point. Thus, Congress should make clear that laws prohibiting discrimination do not extend to mere disparate impact. Legislation has been drafted to do just that, and includes the FHA and a number of other statutes.

Conclusion

The disparate-impact approach to civil-rights enforcement is untenable as a matter of law and policy. It second-guesses nondiscriminatory selection criteria and encourages race-based decisionmaking. 
Those are disturbing abuses of federal power at the expense of liberty and limited federal government. As a general matter, the presumption should be that the decisions of private, state, and local actors are no business of the federal government; an exception can be made in extraordinary circumstances of racial discrimination, but the disparate-impact approach is used precisely when discrimination has not been shown. And the problem is compounded here since it will be the federal government that is encouraging discrimination.

While Justice Kennedy’s opinion for the Court in Texas Department of Housing and Community Affairs v. Inclusive Communities Project unfortunately now allows this approach under the Fair Housing Act, it recognizes the problems with it, leaving the door open to future litigation that limits this approach under that statute, as well as to litigation that challenges or limits the approach under other statutes. Instead of leaving this matter to the courts and the uncertain course of future litigation, however, Congress should act to preclude or at least limit the disparate-impact approach.

“Environmental Justice” and the Trump Administration

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.

*          *          *

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.

A “Disparate Impact” against Justice

The Supreme Court last week ruled 5–4 (Justice Kennedy writing the majority opinion, joined by the four liberals) that “disparate impact” claims may be brought under the Fair Housing Act. The Court’s decision is, needless to say, disappointing. It fails to follow the clear language of the statute, and it will encourage race-based decision-making in the housing area — exactly what the Fair Housing Act was meant to prohibit. The only silver lining is that Justice Kennedy’s opinion itself recognizes this problem, and some of the language toward the end will be useful in stemming the worst abuses.

To elaborate: The question presented in this case was, “Are disparate-impact claims cognizable under the Fair Housing Act?” Under a disparate-impact claim, discriminatory motive is irrelevant: It need not be alleged or 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 — on the basis not only of race, color, or national origin but also of religion, sex, or familial status (that is, having children) — 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.

This numbers-driven, we-don’t-much-care-about-your-reasons approach inevitably results in pushing potential defendants away from perfectly legitimate and race-neutral policies and toward race-based decision-making: again, just the opposite of what civil-rights laws are supposed to do.

Justice Alito wrote the principal dissent (joined by Scalia, Thomas, and the chief justice) in today’s case, and he had much the better of the argument: that the words of the statute, as well as its history and purpose, do not contemplate such lawsuits. Justice Thomas also wrote a separate dissent of his own, devoted to attacking the Supreme Court’s decision in Griggs v. Duke Power Co. (1971), which started all this disparate-impact nonsense.

But now I will say something counterintuitive: The law is actually better now than it was before Justice Kennedy’s decision came down today.

This is true mainly because the bar is so low: All the courts of appeals to entertain this issue had adopted this approach, too, and the Obama administration and its allies in the civil-rights establishment were already interpreting the law this way. So things could not have gotten a lot worse, no matter what the Court had done today.

It is also true, however, that the law is now better because Justice Kennedy himself recognizes that the disparate-impact approach can lead to very bad results. The last part of his opinion sets some limits on it that will be useful. He warns courts against “second-guess[ing]” the nondiscriminatory reasons for challenged policies, requires a “robust causality requirement” rather than relying simply on racial disproportions, recognizes that “racial quotas” and “racial considerations” and “abusive . . . claims” can result from these lawsuits and just the threat of them, and that any “remedial orders must be consistent with the Constitution.” Justice Kennedy all but says that he expects the plaintiffs to lose in this case. He even calls Justice Alito’s dissent, which of course makes similar points, “well-stated.”

Given that the Court was unanimous, then, in recognizing the constitutional problems and bad policy results than can arise from the disparate-impact approach, conservative litigators have no reason not to continue to press courts to reject or at least limit the approach in other cases. For example, the door is still open for courts to reject its use under the Equal Credit Opportunity Act, to limit it under Section 2 of the Voting Rights Act, and to strike down disparate-impact regulations that have been promulgated under Title VI of the 1964 Civil Rights Act.

And then there is Congress, which ought now to amend the Fair Housing Act. And, while it is at it, Congress should clarify that in other contexts as well, the disparate-impact approach is invalid. We’ve even drafted for it the legislation it needs to pass.

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By the way, I was interviewed by National Public Radio, among other media, about the case, and you can listed to that interview here (I come in at about the 3-minute mark).

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Let’s end on a positive note, though:  The Supreme Court has also announced that it will grant review (again) in Abigail Fisher v. University of Texas, as the Center for Equal Opportunity had urged it to in an amicus brief we joined and help write in the case.  The litigation involves a challenge to the university’s use of racial and ethnic preferences in student admissions.