There they go again, in a nice preview of what they’ll do if they take over the Senate and the White House in 2008. “They,” of course, are the Democrats. More specifically, “they” are Sen. Ted Kennedy and friends, who recently introduced S. 2554, the “Civil Rights Act of 2008.”
The CRAo08 would go a long way toward reviving and reinvigorating the largely dormant, even dying, theory of “disparate impact” discrimination, a theory that allows plaintiffs to argue successfully that a ban on racial or ethnic discrimination can be violated by a defendant who does not engage in racial or ethnic discrimination.
Weird? You bet. The estimable Roger Clegg explains how this works (his argument also discussed here):
These claims do not allege, and need not prove, that individuals were treated differently because of their race. Instead, it is enough to show that a neutral practice has a disproportionate effect — that is, a disparate impact — on some racial group.
For instance, if a landlord refuses to rent to people who are unemployed, and it turns out that this excludes a higher percentage of whites than Asians, then a white would-be renter could sue. It would not matter that the reason for the landlord’s policy was race-neutral and had nothing to do with hostility to whites. The landlord would be liable, unless he could show some “necessity” for the policy….
There are lots of other examples of race-neutral policies that can be challenged because of the disparate impact they have in the housing market. Suppose a lender refuses to make home loans to felons — or simply to people with poor credit ratings. Those practices also will have a disparate impact. The same is likely true if a city makes a particular zoning decision (the underlying controversy in Cuyahoga Falls) or has per-house or per-apartment occupancy limits (an increasing area of controversy in many communities).
Federal regulations under the Fair Housing Act also cover insurers. This raises additional disparate-impact issues. Suppose an insurance company refuses to write policies for homes more than 40 years old, or if their market value is less than $40,000. Such rules of thumb are in fact common, and they tend to have a disproportionate impact on certain (often minority) neighborhoods.
The New York Times, of course, urges support for Kennedy’s new civil rights bill. I’m sure it, and those of like mind, would like to see a full-scale revival of disparate impact litigation. That theory, Clegg notes,
is a powerful engine in favor of quotas and racial preferences and against rational and economically sound selection criteria (so it’s no surprise that the civil-rights left is so enamored of it).
And whenever the Democrats take control of the government we’re sure to get more of it, despite the glaring inconsistency between claims of disparate impact discrimination and the directly opposite claim made by these same civil rights activists when they are defending racial preference policies, a contradiction I’ve discussed many times, such as here:
One of the recurring defenses of racial preferences is that they are not really discriminatory. To qualify as discrimination, the argument goes, an action has to involve stigmatizing, degrading, or excluding individuals because of their membership in a particular racial or ethnic group.
I have mentioned too many times to link here that this argument is pure sophistry. Its own advocates don’t really believe it; otherwise they could not argue, as they do, that policies that are not racially motivated but that have a “disparate impact” on minorities can be discriminatory.
But, hey. Whatever works.
ADDENDUM
Usually disparate impact complaints are lodged against some facially neutral policy that is claimed to disproportionately, and hence unfairly, affect a racial or ethnic group. In the Supreme Court case that the new Kennedy bill would overturn, for example, an Alabama requirement that drivers’ license exams be given only in English was said to be national origin discrimination. (Actually, the Kennedy bill would overturn only the Court’s holding that there is no private right of action to claim disparate impact discrimination under the statute at issue, but that technicality needn’t concern us here. It certainly won’t constrain anyone very much from making broader disparate impact claims in the future if the bill passes.)
But not always. I have discussed, at great length (the last three fourths of this post) my involvement in EEOC v. Sears, Roebuck and Co 628 F. Supp. 1264 (1986), 839 F.2d 302 (1988). In that case the EEOC claimed (unsuccessfully) that Sears was guilty of disparate impact discrimination against women even though it could not identify a single policy or practice that produced the allegedly discriminatory effect. Its only evidence was what it termed a statistical underrepresentation of women in certain job categories.
What disasters would befall us if this notion became law along with the concept of positive rights.
And think of where some AA advocate could go with this in college admissions that rely on grades and test scores.
We should rename this FEFLA, the Full Employment For Leftists Act.
Since men are incarcerated at about ten times the rate of women, it looks like it would be sexist to bar felons for most purposes.
See the post below this one. Could not “disparate impact” against Asians be argued in affirmative action admissions? I don’t see why not, except by application of what I call the Matsuda Doctrine, namely that some discrimination is all right, it just depends on who is the object of the discrimination.
To Alex Bensky:
DISCRIMINATION IS DISCRIMINATION and it cannot be justified by “disparate impact”, whether it is “alot of discrimnation” or “just a little discrimination.”
Roger Clegg, General Counsel and Director of the Center for Equal Rights said,
[Those of us “who campaigned” against racial preferences did so not because we care about white kids and not Asian kids — we’re doing so because we don’t like discrimination against anyone. I think the overwhelming majority of those supporting these initiatives feel this way.]
Open letter to Roger Clegg,
MANY THANKS FOR POSTING YOUR THOUGHTS, AS USUAL, YOU HAVE HIT THE NAIL ON THE HEAD AND I CONCUR WITH YOUR POST. I HAVE BEEN SAYING WHAT YOU HAVE BEEN SAYING TO *DEAF EARS*, ESPECIALLY TO THE POLITICALLY CORRECT FLAMING LIBERAL *WHITE WASHED ASIAN AMERICANS, INCLUDING THOSE WHO ARE STUDENTS AND FACULTY IN THE IVIES/ ELITES.* I URGE *EVERYONE* TO SUPPORT ROGER IN HIS ENDEAVOR AND HIS CAUSE FOR RESEARCH AT THE CEO.
Needless to say, Roger, please keep up the good fight against race preferences and racial and ethnic quotas.
Yours truly,
E
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http://phibetacons.nationalreview.com/post/?q=YjQxMDNhOGJmZTVhMGUzOTUwODdmOGQ4NWRkYzFmNmM=
Roger Clegg posted,
“Wednesday, January 30, 2008
The Effect of Nondiscrimination on White Admissions [Roger Clegg]
The Chronicle of Higher Education has a story today (subscription required) on a new study that purports to find that it is Asian students, not white students, who gain most when schools end racially preferential admission policies. And this “‘can hardly be satisfying’ to ‘those who campaigned for the elimination of affirmative action in the belief that it would advantage the admission of white students.'” Moreover, “The report predicts that white people might begin actively opposing race-neutral admissions policies if Asian Americans continue to make gains. ‘Whites are still too influential in politics and in the private sector to sit quietly while this trend continues,’ it says.”
I’m prepared to believe that Asians may be discriminated against more than whites by PC admissions policies, but the evidence is overwhelming — in, among other places, the dozens of studies done by the Center for Equal Opportunity — that both groups are discriminated against (and sometimes Latinos as well). I have a sneaking suspicion that this is just another desperate effort by the proponents of such discrimination to stem the tide that is running against them, this time by trying to persuade whites that they shouldn’t care about colorblind principles, since it is only those darn Asian kids who benefit from them. It’s an ugly tactic, and it won’t work. Those of us “who campaigned” against racial preferences did so not because we care about white kids and not Asian kids — we’re doing so because we don’t like discrimination against anyone. I think the overwhelming majority of those supporting these initiatives feel this way.”
01/30 10:34 AM
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Anonymous comments on Clegg’s post:
I’d like to pose a question:
If someone kicks your butt, and then stops kicking your butt, is that person “helping” or “benefitting” you because your butt doesn’t hurt anymore?
I would argue that Asian Americans experience no benefit from the absence of discrimination. They are merely not being harmed. Conversely, no one who actually or could “benefit” from racial preference is actually or could be harmed by the absence of discrimination. They are merely not being preferred and/or given an unfair advantage based on immutable physical characteristics like race and gender
Response from another reader:
Exactly. Standing up for one’s right not to be classified by race/gender cannot infringe other persons’ right to so classify one, because they have no such right. And, the protection is very narrow. As universities and institutions are free to use just about any other criteria they like (other than race and gender), they have little cause for complaint.
‘Could not “disparate impact” against Asians be argued in affirmative action admissions? ‘
No, no, no. Asians are smart. You are allowed to discriminate against people who are smart (see affirmative action) and people who are economically productive (see the U.S. tax code).
Look for massive, judicially-imposed tax increases if Kennedy’s bill passes.
Virtually every state’s school-financing system has been criticized (and in a few cases challenged in court) under the theory that it has a racially “disparate impact.”
The Supreme Court’s decision barring private lawsuits over disparate impact shut down those lawsuits, which had prevailed in trial courts in at least two states, like Kansas (see, e.g., Montoy v. State), resulting in court orders to spend billions more on educational funding (usually wasted, because judges aren’t experts in what to fund).
If that Supreme Court decision is overturned by this bill, a lot of state laws will be invalidated, and the result will be judicially imposed tax increases to remedy any supposed “disparate impact” in the educational system.
(Education won’t improve. None of the numerous states whose state supremee court has invalidated its state educational funding system on state-law grounds has ever seen any substantial improvement in its educational system, despite the billions of dollars state courts have ordered lawmakers to spend. In some cases, the money has been wasted in disturbing ways).