Last Tuesday, September 9, at the Mayflower Hotel in Washington, D.C., there was a multipanel event on “Civil Rights in the United States” sponsored jointly by the Federalist Society, the Heritage Foundation, and the Cato Institute. Needless to say, these issues are always of interest and have particular salience these days in light of the ongoing drama in Ferguson.
I was the opening speaker on the opening panel, which discussed “Disparate Impact and the Rule of Law: Does Disparate Impact Liability Make Everything Illegal?” You can listen to the panel discussion here (my opening remarks start at the 5:30 mark and last until 22:00, but you might want to listen a bit longer to hear the very nice compliment I received from the next panelist, Peter Kirsanow, at about 22:25; there’s also a lively question-and-answer period that starts at the 55:50, the most lively part beginning around 1:03:50).
I explained what the “disparate impact” approach to civil-rights enforcement was and why it makes no sense. To quote from a Wall Street Journal op-ed I wrote:
Landlords, businesses, local governments and others can be held liable for policies that have disproportionate racial effects — even if those policies make no racial distinctions, are adopted with no discriminatory intent, and are applied in nondiscriminatory ways.
Yet if the numbers come out wrong, then none of the rest matters, unless a defendant can prove to the satisfaction of a judge or jury that there is some high degree of “necessity” for the policy or practice in question. Even then, defendants can lose if a judge or jury is persuaded that some other procedure would have been as good and wouldn’t have resulted in those numbers.
The disparate-impact standard for antidiscrimination law pushes people to do one or both of two things: Get rid of legitimate selection criteria, or use a racial double standard to ensure that the numbers come out right.
Unfortunately, as I also discussed, the approach is being used aggressively today by the Obama administration in a wide range of contexts — to challenge, for example, employers’ use of criminal-background checks, school discipline policies, and voter ID requirements among other things.
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Speaking of voter ID: Last week I read this news account, suggesting that the challenge to invalidate Wisconsin’s voter-ID law prior to the upcoming election appeared to have gotten a cold reception before a federal courts of appeals panel hearing the case. I immediately noted on National Review Online this promising development, and that the proper framework for determining whether such laws violate Section 2 of the Voting Rights Act is the subject of this paper that I had coauthored. Later in the day, the court indeed ruled that the election could go forward.
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In that Wall Street Journal op-ed mentioned above, I also noted:
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. This option holds little interest on the political left.
And that mention of racial preferences is a good lead-in to this last item, involving a news story in the Washington Times about a speech given by Supreme Court Justice Sonia Sotomayor. The story was headlined “Sotomayor voices support for affirmative action,” and read in part:
She said [different opportunities] may start with many people of color being born in economically challenged circumstances, going to school in districts that lag behind, or even where people go to camp.
“So many of my lawyer friends, the people that they have as clients are people they met at summer camps. Many minorities never have the opportunity for that experience,” said Sotomayor, the first Hispanic on the Supreme Court.
The justice — only the third woman on the nation’s highest court — wrote the dissent in April in a 6-2 decision that upheld a state’s right to outlaw the use of race in determining college admissions. She told the audience that when she was a senior in high school, a friend who went to Princeton University called her and urged her to come to the school.
“‘You have to go to an Ivy League school,'” Sotomayor recounted him telling her. “And what I said to him was, ‘What’s an Ivy League school?'”
She did apply, got in and was a good student, the justice said, “but I wouldn’t even have known to apply because I came from a world where that wasn’t the expectation.”
“And that’s true of a lot of kids in a lot of communities,” the justice said. “I certainly wouldn’t be where I am today.”
Here’s my question for Justice Sotomayor: Does she think that there are no white or Asian students who were “born in economically challenged circumstances” or never went to “summer camps” or whatever? And does she think that there are no African American or Latino students who were not born in economically challenged circumstances and who did go to summer camps?
The point is that there is no reason — none — to use skin color and national origin as a proxy for disadvantage in America in 2014. University admissions decisions should be made without regard to race or ethnicity.
