Eating Its Own Tail, Disparate Impact Itself Has A Disparate Impact

On the surface the disparate impact theory of discrimination seems plausible enough (even if not ultimately persuasive) — why shouldn’t any policy or practice that has a disproportionately adverse impact on one racial or ethnic group be prohibited unless a very, very strong justification for it can be produced? In practice, however, as applied, it often amounts either to a lowering of standards for everyone (as when employers are prevented from using tests to measure qualifications for hiring or promotion) or to being no more than a fancy lawyer-created artifice for plain old-fashioned disparate treatment discrimination. When it does this — what I’m referring to here as eating its own tail — disparate impact law itself may be “fair in form, but discriminatory in operation,” as the Supreme Court put it in 1971 when it ratified holding employers liable for “discrimination” they did not intend.

Take New Haven (no, you take New Haven; I’ve already lived there and had all I can take). There is something fundamentally unbalanced and unfair about its legal claims in Ricci v. DeStefano, even beyond the obvious unfairness of Ricci and the New Haven 18 not being promoted because they were of the wrong race. What New Haven and its friends argue in its defense is that the city did not discriminate against Ricci et al. at all, and most especially not at all because of their race. Its motivation, the city argued, was simply to avoid a disparate impact lawsuit it feared facing from the black firefighters if it had promoted a cohort of high-achieving test-passers that included no blacks.

For its part the Obama administration agreed, through the argument of its Solicitor General, that the central issue in the case is the intent of the city in ignoring its test results and denying promotions to Ricci and his fellow hue-impaired plaintiffs. To determine this intent, the administration has urged the Supremes not to decide the case now on its merits but to remand it to the district court for fact finding about the city’s intent. (Let’s leave aside for now the question of whether there is a relevant difference between refusing to promote Ricci et al. because of fear of a disparate impact complaint from black firefighters, which on the city’s and the administration’s view would be legal, and refusing to promote them because all [or too many] of them are white, which everybody agrees would be illegal.)

There is something approaching a Catch-22 aspect of New Haven’s argument here. It argues that promoting Ricci et al. based on a test on which no blacks scored high enough to be promoted would expose it to a disparate impact lawsuit from black firefighters. And in such a lawsuit, it is important to note, because of the rules of the disparate impact game the city’s non-racial, non-discriminatory intent would be useless as a defense. The only thing that would matter is the racial effect of using the test, assuming the test was sufficiently job-related. But when the white (and one Hispanic) firefighters complain of discrimination because the city refused to honor the results of its test, they must prove a nefarious intent! How is that fair?

Moreover, the city’s argument that its decision was not discriminatory because no one was promoted has a foul smell to it. It reeks of the old segregationist argument that closing a municipal swimming pool to avoid integration and banning interracial marriages are not discriminatory because the pool closing and the interracial marriage ban apply equally to all races (as I argued here).

There is also something ironic, or worse (dare one call it hypocritical?), about the fixation on intent in Ricci by those who believe in pervasive but cleverly disguised “structural racism,” who are thus the most ardent defenders of disparate impact, and who regard civil rights enforcement without disparate impact as being akin to riding a bicycle without wheels. They emphasize intent and thus contradict themselves with their Ricci strategy, I believe, because they recognize how that case threatens to reveal the double-standard inherent in many disparate impact cases, that it threatens to blow down the whole house of cards of disparate impact. To what now passes for the civil rights movement and its allies in academia, the media, and now the White House, in short, disparate impact is more than a litigation strategy based on a redefinition of discrimination. It is integral to the entire “diversity” strategy of the affirmative action agenda.

Shelby Steele recognizes this clearly, and makes the argument better than I have, in his scathing indictment today of President Obama for nominating Sonia Sotomayor to the Supreme Court. After a penetrating discussion of how the “almost perfect predictability” of her nomination is a continuation of the very “cardinal sin of identity politics” that people thought they were rejecting in voting for Obama, Steele reprises his theory of black leaders as either bargainers or challengers.

Bargainers, he writes, make a bargain with white society: “I will not ‘guilt’ you with America’s centuries of racism if you will not hold my minority status against me.”

A challenger, by contrast, is “someone who presumes that whites are racist until they prove otherwise by granting preferences of some kind to minorities,” and Sotomayor “is the archetypal challenger.” (This is not the place for me to argue with Steele, but I think on this point he exaggerates the difference between bargainers and challengers by omitting an implicit codicil to the bargain he describes: “… and the way for you to prove that you do not hold my minority status against me is to give me preferential treatment because of my minority status.”)

Challengers see the moral authority that comes from their group’s historic grievance as an entitlement to immediate parity with whites — whether or not their group has actually earned this parity through development…. This creates a terrible corruption in which the group’s historic grievance is allowed to count as individual merit. And so a perverse incentive is created: Weakness and victimization are rewarded over development. Better to be a troublemaker than to pursue excellence.

Sonia Sotomayor is of the generation of minorities that came of age under the hegemony of this perverse incentive. For this generation, challenging and protesting were careerism itself. This is why middle- and upper middle-class minorities are often more militant than poor and working-class minorities. America’s institutions — universities, government agencies, the media and even corporations — reward their grievance. Minority intellectuals, especially, have been rewarded for theories that justify grievance.

Sotomayor’s nomination, and the intense debate over Ricci that it has provoked and amplified, thus reveal the high stakes of this debate over disparate impact, for it is there, Steele concludes, that “we come to Judge Sotomayor’s favorite such ingenuity: disparate impact.”

In the now celebrated Ricci case the city of New Haven, Conn., threw out a paper and pencil test that firefighters were required to take for promotion because so few minorities passed it. In other words, the test had a disparate and negative impact on minorities, so the lead plaintiff, Frank Ricci — a white male with dyslexia who worked 10 hours a day to pass the test at a high level — was effectively denied promotion because he was white. Judge Sotomayor supported the city’s decision to throw out the test undoubtedly because of her commitment to disparate impact — a concept that invariably makes whites accountable for minority mediocrity.

But now consider this: what if the complaint of Ricci et al. were treated as a disparate impact claim? (I’ve made this point before, here .) And why shouldn’t it be? If using a test that disproportionately disadvantages a racial or ethnic group risks a disparate impact suit, why shouldn’t not using a test that disproportionately disadvantages a racial or ethnic group risk an identical suit? Just as honoring the New Haven test’s results would have led to the promotion of no blacks, just as surely not honoring the test’s results did in fact lead to the failure to promote only whites (and one Hispanic) who would otherwise have been promoted. I would pay a not inconsiderable fee to read the briefs and listen to New Haven’s arguments in such a lawsuit, to hear it reply, as it must, that not honoring its test’s results was a “business necessity.”

In the real world, as revealed clearly in New Haven, disparate itself is the culprit. A concern for disparate impact … has a disparate impact. If you think I exaggerate, give me a list of cases where employers have been held liable for policies or practices that had a disparate impact on Asians, whites, or other non-preferred minority groups.

Say What?