Center for Equal Opportunity

The nation’s only conservative think tank devoted to issues of race and ethnicity.

Wed09202017

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Pretty Good End to a Really Bad Case

The Ninth Circuit issued a favorable opinion this summer in Hardie v. NCAA, a case raising the important question of whether “disparate impact” liability is cognizable under Title II of the Civil Rights Act. The Ninth Circuit didn’t answer the broad question of whether Title II ever recognizes such claims. It held instead that NCAA’s ban on felon-coaches in its high school tournaments didn’t amount to a disparate impact violation, even if Title II might under other circumstances encompass such claims.

In a cogent concurring opinion, Judge Faber noted that although NCAA did not argue the issue on appeal, “amici Pacific Legal Foundation (PLF), Competitive Enterprise Institute (CEI), and the Center for Equal Opportunity (CEO) have argued most ably that Title II does not authorize disparate-impact liability.”

The concurring opinion echoed the arguments the Center for Equal Opportunity made in its amicus brief, filed with PLF and CEI. In particular, the opinion adopted our argument that Congress must provide a clear statement of its intent whenever it wishes to impose disparate impact liability (which it didn’t do in Title II), because disparate impact liability raises significant constitutional concerns.

The Equal Protection Clause requires the government to treat everyone as individuals. Disparate impact liability, however, requires the government to treat everyone as components of a racial class. The Constitution cannot countenance such a result.

The Ninth Circuit did not address the important constitutional question in Hardie. But rest assured that the court will have to address that question one day. When that day comes, the Center for Equal Opportunity will be on the front line to defend the constitutional guarantee of equal protection.

Special thanks to PLF’s lawyers in this case (and for much of the description of the case above).  For some additional background, here’s what I wrote about the case at the time the case was argued:

The Ninth Circuit this month heard oral argument in a case challenging the NCAA’s policy of barring all convicted felons from coaching in NCAA-certified tournaments held for recruiting student-athletes to NCAA Division I schools. The policy is said to have a disparate impact on African Americans, and this is supposed to violate Title II of the 1964 Civil Rights Act, which bans “discrimination or segregation on the ground of race, color, religion, or national origin” in “places of public accommodation.”

Sigh. Putting aside why the NCAA having this rule is “public accommodations” discrimination covered by Title II in the first place, it would be absurd to construe this statute to allow “disparate impact” causes of action. Consider a hotel resort, which clearly would be covered: Are its rates, location (are a city’s hotel-zoning decisions to be challengeable, too, by the way, if they have a “disparate impact”?), menus, music, dancing, décor, and on and on to be challengeable because in some way one or the other is less accommodating, statistically speaking, to this group or that group on the basis of race, color, ethnicity, and religion? The disparate-impact approach is exceptionally unwieldy even in the areas where it has already been applied, as I discuss here (noting, among other things, that the Supreme Court’s most recent pronouncement in this area, while disappointing, was at least unanimous in recognizing the dangers with the disparate-impact approach), and there is no reason to make matters worse.

It’s telling that even the Obama administration, which was always very aggressive in using the disparate-impact approach, decided to sit this case out. No federal regulation interpreting Title II as including disparate-impact discrimination is cited by plaintiffs. Fun fact: The district judge in this case, who ruled correctly that Title II does not allow disparate-impact lawsuits, was Gonzalo Curiel — the Obama appointee you may remember as the Latino jurist that President Trump complained about.

Finally, bear in mind that the disparate-impact approach requires race-based decision-making rather than prohibiting it. That is, it means that a decision-maker must be conscious of getting its racial, ethnic, and religion numbers right in order to avoid liability, rather than simply making decisions without regard to these things, which of course is what the civil-rights laws are supposed to be all about. Thus, the approach raises constitutional problems, as the late Justice Scalia noted. Accordingly, my organization joined an amicus brief filed by Pacific Legal Foundation, urging the court to adopt the principle of limiting the interpretation of civil-rights statutes to banning actual discrimination (disparate treatment) unless there is clear language in the statute to the contrary (which is conspicuously lacking here: A policy that is, as conceded in this case, neutral by its terms, in its intent, and in its application is not “discrimination or segregation [i.e., no “separate but equal” defense] on the ground of race” etc.).

Here’s hoping the Ninth Circuit agrees and puts paid to the notion that Title II can be used in this absurd way.

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The New York Times had a big story last week about how African Americans and Latinos are still “underrepresented” at the nation’s top universities, despite decades of receiving admissions preferences.  The Times’s use of statistics is flawed, and I may write more about that and other problems with the article in the future, but for now I’d make this point:  So what? 

That is, even if the basic point of the Times story is true, then what are we to conclude from this?  Certainly not that, therefore, racial and ethnic preferences in university admissions ought to continue. 

In the first place, opposition to such discrimination has never been based on achieving or preventing some statistical result.  To the contrary:  It’s because discrimination is bad thing, period. 

In the second place, if racial and ethnic preferences are not achieving the promised results, then that suggests that those who want to improve African American numbers, in particular, ought to be looking elsewhere.  And the truth of the matter is that conservatives like me have long said that, when you think about it, a child’s environment can, like Gaul, be divided into three big parts, and in all three African Americans face special problems. 

There are the child’s peers, and the pernicious claim that academic success is “acting white” is a real problem, as Stuart Buck demonstrated in his excellent book of that name.  There are the child’s schools, and it’s true that these children and their parents should have more choice in selecting schools (which the Left generally opposes).  And — most important of all by far — there is the child’s family, and seven out of ten African Americans are born out-of-wedlock, with bad effects on the child’s educational (and other life) prospects.