Blogging at its Best: Thoughtful

Blogging at its Best: Thoughtful Criticism – Garrett Moritz has a very thoughtful critique of my recent post on the “underrepresentation” of men in college and what implications that might have for the notion of disparate impact.

I had argued that the “disparity” between men and women in college admissions is even greater than in college sports and that accepting the logic of using Title IX to force colleges to cut back on men’s teams in order to promote gender equity should, logically, require colleges to take steps, such as admissions preferences for men, to equalize admissions as well. Some public colleges, I pointed out, have in fact employed such preferences. (Because, no doubt, of a lack of clarity on my part, Moritz seems to think I actually favor such preferences. I don’t. I was attempting a “gotcha.” I think I got it; Moritz doesn’t. You decide.)

Regarding college athletics specifically, Moritz says the neutrality principle I prefer does not apply because “[d]ifferences in funding and sports programs don’t simply materialize through the application of neutral criteria; they are the result of specific choices by school sports administrators.” This is true, and a very good point, although I think it is mistaken to the degree that it implies that men and women have equivalent interests in sports and that the disparities in participation can be explained primarily by the biased decisions of administrators. This view reminds me of an argument I heard quite often from friends (or former friends) during my work with the law firm defending Sears Roebuck in the sex discrimination suit brought against it by the EEOC. It was no defense of Sears, they would claim, that men are more interested in and available for installing heating and air conditioning systems, home appliances, etc. If Sears only chose to sell different products, my friends argued, it could get more women employees. Well, yes.

In a couple of very polite and provocative emails back and forth Moritz also took issue with my tweaking lefty/liberals for their inconsistency in opposing any state action that benefits religion — no matter how secular the intent and how general the benefit, such as vouchers — even though they emphatically endorse state action that benefits one race as opposed to another. In other words, liberals argue that the obligation to enforce “equal protection of the laws” allows the state to provide racial preferences but that the prohibition against any laws “respecting an establishment of religion” does not allow the inclusion of churches in general benefits provided for secular purposes to non-religious organizations. Roger Baldwin, founder of the ACLU, used to criticize those who believed in “civil liberties for our side only,” and my point was that the left seemed to believe that disparate impact was a one-way street that bars policies they dislike while allowing those they like. They apply an effects test to vouchers, and would bar them. They apply an effects test to the SAT, and many liberals favor eliminating it. But they apply an intent test to the pledge and would eliminate it even if the offending phrase doesn’t have much of an “Establishing” effect, and they certainly have no complaint about the effects of state preferences that disproportionately benefit minorities.

Moritz replies that my attacks on disparate impact amount to “tilting at windmills” because disparate impact is a corpse, a dead relic of the 60s that has been interred by the Rehnquist court. (He, of course, says more than this, and says it better, so I encourage you to visit his site.)

As a matter of current law he is correct. But current law, as everyone knows (and some hope), can change. Moritz acknowledges that a disparate impact approach to civil rights warms the cockles of lefty hearts (my words, not his), and one would need to be neither a Polyanna nor a paranoid (depending on your politics) to see how even one new justice could change the direction of the Court on these matters. The target of my jousting was thus not the law as it is but the law as lefties (including Moritz, he says) would like it to be.

Finally, in another post, Moritz takes me to task for a suggestion I tendered, in discussing the pledge and voucher cases, that “[p]erhaps we should come up with a new standard that would require both an impermissible intent AND sufficiently extensive effects in order to find [an] Establishment violation.” Such an approach, I suggested, would be one way to reconcile the conclusion that neither school vouchers nor the phrase “under God” in the pledge violate the Establishment clause. In the voucher case there was no intent to promote religion in a program that was adopted for secular purposes, but there was arguably an effect of promoting religion since the Cleveland vouchers were used overwhelmingly in religious schools. In the pledge case, by contrast, Congress clearly showed an intent to promote religion by inserting the “under God” phrase in the pledge, but arguably that did not have much of an effect of promoting religion.

Moritz views my suggestion as unprincipled result shopping. He makes a good point, makes it characteristically well, and in fact may even be right. I have argued, in the posts that Moritz cites and elsewhere, that by looking only to effects disparate impact distorts the meaning of discrimination by draining it of any discriminatory intent. I hope he is right that that approach is legally dead, and I would like it to stay dead. I’m not altogether convinced, however, that my belief that a finding of intent is necessary to a finding of discrimination or Establishment violation necessarily means that one must not consider effects at all. There is something to “no harm, no foul” common sense in law, as elsewhere. Nevertheless, I think the principle of neutrality, applied in both the racial (color-blindness) and religious (religion-blindness) arenas, is of paramount importance, and I would happily sacrifice the “under God” phrase in the pledge if that is necessary to maintain a principled consistency.

Finally, I would like to say that Moritz’s points are very thoughtful and that he has pursued them courteously, both on his blog and in private emails. I appreciate that, and am sad only because I have found thoughtful, courteous criticism so rare. I am pleased to have provoked it.