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Martin Luther King Day – and “Disparate Impact”

It’s felicitous that two days after Martin Luther King Day this year, the Supreme Court will be hearing oral arguments in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project. This case involves the “disparate impact” approach to civil-rights enforcement, and that approach is contrary to Dr. King’s famous dream of a day when Americans would be judged by the content of their character rather than the color of their skin.

Suppose that the owner of an apartment complex decides that she does not want to rent units to people with recent convictions for violent crimes. She makes this decision for obvious reasons, namely that such criminals are unreliable tenants and that their presence makes it harder to rent other units and more likely that current tenants will decide to leave. She does not adopt this policy because she thinks it will disproportionately exclude members of this or that racial or ethnic group — indeed, she is completely unaware of what demographic impact it will have — and she applies it evenhandedly, without regard to skin color or national origin. What’s more, she can prove all this in court.

Can she nonetheless be liable for racial discrimination if her policy turns out to exclude members of some racial groups more frequently than members of other racial groups?

The Obama administration says yes — and the Supreme Court will determine in the Texas case if that’s right. In the meantime, a federal district court has said no, and struck down the administration’s regulations to the contrary.

In the administration’s view, and according to those regulations, which were issued by the Department of Housing and Urban Development, if a policy has this sort of “disparate impact,” as it is called, then that’s enough to make the landlord liable. So she must then prove — to the satisfaction of the HUD bureaucrats, a federal judge, or a jury — that there is some high degree of “necessity” providing “legally sufficient justification” for her policy.

And even if she shows this necessity, she can still lose if the government (or a civil-rights plaintiff) persuades the judge or jury that there was some other policy she could have followed that would have been practically as good and would not have resulted in those bad numbers.

The Obama administration has made no secret of its love for this approach to civil-rights enforcement, and it has been aggressive in applying it to every imaginable situation. In employment, for example, it complains if a fire or police department administers physical or written tests that have politically incorrect results, or if a company uses 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 applied 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 and other institutions 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.

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.

While the Obama administration’s enforcement policies are bizarre, the other two branches of government are also at fault and can likewise help address the damage that’s being done.

The courts have often blessed these lawsuits even when they are inconsistent with the underlying civil-rights statutes. The Supreme Court has the opportunity in the Texas case to end such lawsuits under the Fair Housing Act.

Congress can play a role, too. It should change those statutes that allow for disparate-impact lawsuits, like Title VII of the 1964 Civil Rights Act, which deals with employment discrimination. The Voting Rights Act also has disparate-impact provisions in it. If Congress won’t take them out, it should at least not put any new ones in, no matter what the civil-rights groups demand.

If Congress won’t change these statutes, then the Supreme Court should strike them down or at least limit them. After all, they explicitly require decision makers to weigh skin color in their actions — a requirement that the Constitution generally forbids, and that is at odds with Dr. King’s dream.

Third Time’s the Charm?

Here’s hoping the third time’s the charm.  The Supreme Court last week granted review in a case presenting the issue whether “disparate impact” claims may be brought under the Fair Housing Act. This is the third term in a row the Court has done so; in the preceding two, the Left succeeded in scuttling the cases before the Court could decide them. 

In a disparate-impact case, the plaintiff does not have to prove racial discrimination, but only a racial disproportion.  So, for example, a landlord who refused to rent to people with a history of drug-dealing, or had income below a certain level, or who had poor credit histories, could be sued if any such criteria had a disproportionate effect on this or that racial or ethnic group.  It would be up to the landlord to prove some degree of “necessity” for her policy, even if was nondiscriminatory by its terms, in its motive, and in the way she applied it.

The Center for Equal Opportunity has been heavily involved in all three cases.  Here’s an amicus brief that we joined and helped write in the latest matter, discussing the case and why the Court should hear it.  We don’t believe that the Fair Housing Act covers “discrimination” that is not actually discrimination.

By the way, just before the Court’s announcement, I was quoted in a Bloomberg News article about the case, here.

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And speaking of “disparate impact”:  The Obama administration’s Department of Education last week announced that it is sending a long (37 page) “Dear Colleague” letter to all states, school districts, and schools, warning them about any racial disparities in any of their programs, and including academic and extracurricular programs, teaching, technology and instructional materials, school facilities, and I suppose anything else. 

The asserted authority for this is Title VI of the 1964 Civil Rights Act, which bans discrimination on the basis of race, color, and national origin. Nothing wrong with that statute, which the Supreme Court has held bans only actual discrimination (“disparate treatment”), but the Obama administration makes clear that it will be using DoEd’s regulations to challenge disproportions even when there is no actual discrimination (“disparate impact”). 

As the administration said last week, “Under Title VI, States, school districts, and schools must not implement policies or practices for providing educational resources that disproportionately affect students of a particular race, color, or national origin, unless the policies and practices are educationally necessary and there are no comparably effective alternatives that can achieve the same goals with less adverse effect.”

This, of course, is the administration’s favorite mode of civil-rights enforcement (it’s already announced it will take this approach with respect to school discipline), and it has all kinds of bad side-effects, such as encouraging race-based decisionmaking by educators (“we’ve got to get our numbers right”), and discouraging perfectly legitimate policies that have disproportionate effects (as almost all policies do).

So this is a bad letter.  But let me elaborate a bit more on a couple of points.

First, it is breathtaking in its scope. For example, the Obama administration has given notice that it will be looking not only at funding disparities within school districts, but between them (see page 1, second footnote; and pages 5 and 11; note also references in its accompanying press release to “zip codes” and “family income,” which are not racial classifications). It will look askance at racial imbalances in gifted and talented programs, AP classes, and the like (pages 3–4, 11–12). Thus, “The selection of schools to offer particular programs and the resources made available for the success of those programs may not disproportionately deny access to students of a particular race or national origin. Also, the policies for recruitment and admission to particular schools or programs, both within and across schools, should not deny students equal access on the basis of their race.” Hear that, Bronx High School of Science? And it will look at “student achievement outcomes, graduation and retention-in-grade rates” (page 9).

As I’ve already noted, the principal problem with the guidance is its aggressive use of the disparate-impact approach. This is a bad approach under any circumstances, but the version of it embraced by the guidance is particularly pernicious — and legally dubious. The burden of proving a disparate-impact charge here should at all times rest on the government; the school district should never have more than the burden of producing evidence; but the letter indicates to the contrary. Also, the correct formulation of what the produced evidence has to show is “whether a challenged practice serves, in a significant way, the legitimate educational goals of the school”; the DoEd formulation is the more stringent “necessary to meet an important educational goal.” The guidance is also misleading when it asserts the Supreme Court has said nothing to undermine the disparate-impact approach under this statute; it has, beginning with the very opinion the guidance cites (footnote 33).

By the way, it appears that Senator Lamar Alexander (R., Tenn.), the ranking member on the Senate’s education committee, doesn’t think much of DOE’s guidance either: He’s called on the Obama administration to rescind it.

One last point about the guidance:  The public has the opportunity to comment (footnote 3): “If you are interested in commenting on this guidance, please send an e-mail with your comments to This email address is being protected from spambots. You need JavaScript enabled to view it. , or write to the following address: Office for Civil Rights, U.S. Department of Education, 400 Maryland Avenue, S.W., Washington, D.C. 20202.”

The Center for Equal Opportunity certainly will do so.

The (Illegitimate) Elephant in the Room

“Quid Pro Quota” is the apt title of an editorial this month in the Wall Street Journal (behind the paywall here). Here’s the story: Earlier this year, the Supreme Court was poised to hear oral arguments in the fully briefed Magner v. Gallagher, a case presenting the issue of whether a “disparate impact” cause of action may be brought under the Fair Housing Act.


The Right Way to Interpret the Voting Rights Act

As Eric Holder’s Justice Department attacks voter-ID laws in Texas and North Carolina, Hans von Spakovsky of the Heritage Foundation and I have written a paper that warns the courts that they should be wary of construing Section 2 of the Voting Rights Act to find liability when only a “disparate impact” on the basis of race has been shown.

“Disparate impact” is the favored but dubious legal theory of the Obama administration. It’s being used to attack everything from election integrity to the financial industry when DOJ doesn’t have any evidence of intentional discrimination. This theory lets DOJ attack completely race-neutral laws and practices that it doesn’t like for policy reasons.

We argue that under Section 2, courts should require some evidence of underlying disparate treatment on the basis of race. In addition, the courts should consider the state’s legitimate, nondiscriminatory interest in a challenged practice, such as preventing voter fraud and maintaining public confidence in the fairness and integrity of the electoral process.

Our paper can be found here, and this email briefly summarizes its arguments.

The potential conflict between Section 2 and the Constitution. In the wake of the Supreme Court’s decision last summer in Shelby County v. Holder, which struck down the coverage formula for Section 5 of the Voting Rights Act, the Obama administration has decided to bring lawsuits under another VRA provision — Section 2 — to challenge antifraud measures. The administration is likely to assert that Section 2, which is a nationwide provision, can be used to strike down such voter-ID laws whenever they have a disproportionate racial effect.

But construing Section 2 to create liability whenever there is a mere “disparate impact” with respect to race raises serious constitutional problems — problems that can be avoided if the statute is given a narrower, and at least equally plausible, interpretation.

Here’s why the pure “disparate impact” approach creates a problem: The 14th and 15th Amendments prohibit state actions only where there is “disparate treatment” on the basis of race. The U.S. Supreme Court has made clear that in the context that means actions undertaken with racially discriminatory intent.

Thus, congressional legislation must be aimed at preventing intentional racial discrimination, not just actions that may have just an effect that disproportionately affects racial minorities. This is especially so in light of federalism concerns and the fact that, as Justice Antonin Scalia noted in Ricci v. DeStefano, the disparate-impact approach actually encourages race-based decisionmaking, which would violate the Constitution’s guarantee of equal protection.

It is possible to construe Section 2 so as to mitigate the constitutional problems that would be raised by a pure “disparate impact” statute — an important fact, since case law demands that courts construe statutes to avoid constitutional problems. This can be accomplished by interpreting the “results” language in the statute to require challengers to demonstrate a close nexus between the practice in question and actual disparate treatment (an action taken for a discriminatory purpose), and by giving defendants a rebuttal opportunity to show that they have legitimate, nondiscriminatory reasons for the challenged practice. The “totality of circumstances” test and the phrase “on account of” in Section 2 arguably add just such a causality factor and rebuttal opportunity to the statute’s “results” language.

Require that disparate “results” have a close connection to disparate treatment. A court should not impose liability where only a disproportionate racial impact has been shown.  The word “results” seems to be something of a compromise between pure effects and pure intent, and the statute’s legislative history is consistent with that.  As the Second Circuit stated in Muntaqim v. Coombe, “Congress did not wholly abandon its focus on purposeful discrimination when it amended the [Voting Rights Act] in 1982,” as it continued to bar only “practices that deny or abridge the right to vote on account of race or color.” Proving a violation requires more than a “showing of racially disparate effects.” Even with the “results” test, Section 2 still requires proof of discrimination “on account of race or color.” Other cases have taken this approach, too.

A plausible reading of Section 2 is that it prohibits, in addition to intentional discrimination, a practice that “results” in a disparate racial impact only if that result is “on account of race.” In the antifraud context, the plaintiff should have to show, for example, not just that a voter-ID law had a disproportionate racial result but that the result has discriminatory roots — that acceptable forms of voter ID are less likely to be held by African Americans because of past (but relatively recent) discriminatory practices.

For example, this could require proof that relatively few African Americans have valid drivers’ licenses because driving tests have been administered in a purposefully discriminatory way. In other words, the result has to have substantial roots in racial discrimination.

Allow rebuttal if legitimate, nondiscriminatory reasons for the practice are shown. Disparate-impact lawsuits typically afford the defendant an opportunity to demonstrate that the challenged practice, even if it has a disproportionate racial effect, is justified. In an employment-discrimination case, for example, defendants are allowed to defend challenged selection criteria as being tied to some important, nondiscriminatory business reason, and the same must be true in voting cases.

For instance, prohibiting children or noncitizens from voting may have a disparate impact on racial or ethnic groups if those groups contain a disproportionate number of young people or recent immigrants. But it seems obvious that states have legitimate nondiscriminatory reasons for these prohibitions. To deny states that opportunity would be impractical and bizarre, since it would seemingly require them to allow children and noncitizens to vote!  This would heighten the constitutional problems presented by Section 2.

The courts have recognized that there may be legitimate reasons to impose practices that end up having disparate racial results. The litigation in Houston Lawyers’ Ass’n v. Texas Attorney General, for instance, ultimately rejected a challenge to Texas’s countywide election system for district-court judges — notwithstanding that system’s alleged disparate impact on racial-minority candidates — because the state had a “substantial interest” in maintaining a close link between the electorate and the jurisdiction over which these elected officials would preside, thereby promoting “the fact and appearance of judicial fairness.” Likewise, the Sixth Circuit held that a state’s “legitimate and compelling interest” in disenfranchising felons outweighed any supposed racial impact.

The remaining question is how great an interest the state must show in order to satisfy its rebuttal requirement: Must it be “compelling” or merely “legitimate,” or something in between (say, “important”)? The Supreme Court’s language in Houston Lawyers’ Ass’n suggests a relatively modest hurdle, and a standard requiring simply a nondiscriminatory and legitimate reason, such as ensuring integrity and public confidence in the election process, would avoid stretching Section 2 beyond the limits of the Constitution.

Conclusion.  Courts should avoid construing Section 2 of the Voting Rights Act in ways that raise constitutional problems. In particular, the “results” language of the statute should be interpreted to require a close nexus to some disparate treatment and should provide defendants a rebuttal opportunity to show that they have legitimate, nondiscriminatory reasons for the challenged voting practice. Without such an interpretation, Section 2 would likely be unconstitutional, just as the coverage formula for Section 5 was found to be.

Happy Thanksgiving, and more

First of all, a Happy Thanksgiving to you and yours from the Center for Equal Opportunity! We at CEO have much to be thankful for this year, and that certainly includes supporters like you.

One thing we would not put on our most-thankful-for list, however, is wacky interpretations of the civil-rights laws. Speaking of which …

The Supreme Court granted review earlier this month in Magner v. Gallagher, which presents the question whether a “disparate impact” cause of action can be brought under the Fair Housing Act. Such lawsuits would allow plaintiffs to challenge housing-related practices that lead to disproportionate racial or ethnic results, whether or not they have anything to do with actual discrimination. For example, a preference for tenants without criminal records could be attacked if this or that racial or ethnic group was more likely to have such a record. Many lower courts have recognized disparate-impact lawsuits, alas, but the Supreme Court has never resolved the issue.


Mt. Holly and “Disparate Impact”

This year the Supreme Court had agreed to resolve a fundamental question about the Fair Housing Act that it has never answered: Can you be found guilty of racial discrimination if you have not engaged in racial discrimination?

Suppose, for example, that the owner of an apartment complex decides that she does not want to rent units to individuals who have been convicted of drug offenses. She makes that decision without regard to race, her policy on its face does not treat people differently because of race, and indeed she enforces it in an evenhanded way, so that it applies equally to all applicants, without regard to race. Should she be liable for racial discrimination under the Fair Housing Act if it turns out that the policy in her neck of the woods has a disproportionate effect on this or that racial or ethnic group?

The Obama administration and the civil-rights establishment say, “Yes,” even though most everyone else would say, “No.” The administration and the civil-rights groups are afraid, in particular, that the Supreme Court will answer the question, “No,” too, and so they want very much to keep the Court from resolving this issue.


Disparate Impact Insanity

In case you missed it, on February 26 I had an op-ed in the Wall Street Journal titled “How Not To Fight Discrimination.”  Here it is:

Welcome to the era of "disparate impact."

The Obama administration this month issued regulations formally adopting the "disparate impact" approach to its enforcement of the Fair Housing Act, the 1968 law designed to protect buyers and renters from discrimination (racial and otherwise). This approach is increasingly becoming standard in housing and every area of the law.