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The (Illegitimate) Elephant in the Room

“Quid Pro Quota” is the apt title of an editorial this month in the Wall Street Journal (behind the paywall here). Here’s the story: Earlier this year, the Supreme Court was poised to hear oral arguments in the fully briefed Magner v. Gallagher, a case presenting the issue of whether a “disparate impact” cause of action may be brought under the Fair Housing Act.


Now, the theory in disparate-impact causes of action is that someone can be held liable for racial discrimination if he uses a selection device that leads to a racial imbalance, even if the device is neutral on its face, in its intent, and as applied. In the housing context, for example, rejecting mortgage applicants because of their credit history can be challenged if this results in a higher percentage of blacks than Asians being turned down, and it then becomes up to the lender to prove to a jury some degree of “business necessity” for his practice. The Obama administration is a great fan of this approach to civil-rights enforcement, and it was quite upset that the Supreme Court might rule it illegal. So it successfully leaned on the City of St. Paul, the petitioner in the suit, to withdraw its case from the Supreme Court.

When the Justice Department’s coercion came to light, two House committees decided to investigate, and what they found is the subject of theJournal editorial. It turns out that part of the deal with the City of St. Paul was that the Justice Department agreed not to intervene in a separate, False Claims Act lawsuit alleging that the City had made false certifications to the federal government. That deal was made at the insistence of Civil Rights Division head Thomas Perez and over the objections of the department’s career attorneys in the Civil Division. Oh, and here’s another nugget, not mentioned by the Journal: The false certification was that the city was using federal funds to create jobs for low-income workers of all races, when in fact it was only focused on employing minorities. To Perez, then, it was a win-win deal: He would ensure that the Obama administration could continue to bring disparate-impact lawsuits (which result in politically correct racial discrimination) in exchange for giving the city a pass on its policy of . . . politically correct racial discrimination. Of course, staying out of the False Claims Act suit may have cost U.S. taxpayers over $180 million, according to the House committees, but who says that social justice is cheap?

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The NAACP Legal Defense and Educational Fund has filed a complaint with the U.S. Department of Education’s Office for Civil Rights, urging it to strike down the entrance exam used by selective New York City high schools. It’s a “disparate impact” complaint, meaning that it argues that the test should be ruled discriminatory because of the fact that some racial groups are doing better on it than others — even though, again, the test is neutral on its face, in its application, and in its intent. In my view, mere “disparate impact” is not illegal discrimination, but unfortunately, as noted above, the Obama administration is a big fan of this approach to civil-rights law. Here’s a general critique of the disparate-impact approach I wrote some years ago. Note that the first example I give there (pages 1–2) is the Clinton administration’s similar attack on the SAT.

There are basically three ways that the city can defend its use of the test. The first is to deny that there is a disparate impact, which I assume will be difficult in light of the numbers cited in the news story. The second is to argue that any disparate impact is justified because of the test’s predictive value of students’ high-school performance; that issue will likely be the focus of OCR’s investigation. But the third is to argue that the disparate-impact approach is inconsistent with the applicable federal statute here, Title VI of the 1964 Civil Rights Act. Here’s hoping that this defense is made aggressively and that somewhere down the line a federal court agrees (the Supreme Court has never resolved this issue, though it has rather pointedly noted it — see footnote six here).

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Last week the federal government released its latest figures on births in the United States, including out-of-wedlock births. The numbers are very close to last year’s: 72.3 percent of non-Hispanic blacks are now born out-of-wedlock; 66.2 percent of American Indians/Alaska Natives; 53.3 percent of Hispanics; 29.1 percent of non-Hispanic whites; and 17.2 percent of Asians/Pacific Islanders. That’s 40.7 percent overall: a disaster.

It is, of course, no surprise that the groups with the highest illegitimacy rates are the groups that are struggling economically, educationally, with crime, and so forth. Here’s a modest proposal: Why don’t the NAACPand similar organizations take all the money they use to challenge and complain about the standards that their groups (in the aggregate) don’t meet when it comes to university admissions, selective high-school admissions, school discipline, mortgage loans, police and firefighter tests, felon disenfranchisement laws, employment policies that look at criminal records, etc., etc., and use that money to figure out ways to bring down the illegitimacy rates that drive all these other disparities?

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One last item:  On Wednesday this week the Supreme Court will hear oral arguments in Fisher v. University of Texas, a case challenging racial and ethnic preferences in university admissions and in which, as you know, the Center for Equal Opportunity has played an important role.

The Fisher case is the prompted an op-ed last week in theNew York Times by Princeton professor Thomas J. Espenshade. There’s a lot of predictable handwringing in it: Professor Espenshade calls racial preferences “a woefully inadequate weapon in the arsenal against inequality” and recognizes some of their bad, unintended consequences, but also calls them “necessary, and often beneficial.” Still, it’s good that more and more liberals seem to be resigned to the fact that the days of racial preferences are, and maybe even ought to be, numbered.

But, as the title of the op-ed suggests, Professor Espenshade’s real focus is on how to address racial disparities in education without using racial preferences. So he lists the various possible reasons for those disparities, like “diet and nutrition” and “sleep routines” and “stress outside the home” — in short, that is, everything except the most obvious and underlying social problem: illegitimacy.