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“Disparate Impact” at Harvard Law School

Last week I spoke at Harvard Law School against the use of a “disparate impact” approach in civil-rights law.  It went very well, and I thought in this week’s email I would give you an account of what I said.

Under a disparate-impact claim of discrimination, discriminatory motive is irrelevant: It need not be alleged nor proved, and it doesn’t even matter if the defendant proves that there was no discriminatory motive. If a policy or procedure results in a disproportion of some sort — not only on the basis of race, color, or national origin, but also religion, sex, or whatever — then that’s enough, even if the policy is nondiscriminatory by its terms, in its intent, and in its application.

The defendant can prevail only by showing – to the satisfaction of a judge or jury who may know or care nothing of the defendant’s needs – some degree of “necessity” for the policy.

The Obama administration has made no secret of its love for this approach to civil-rights enforcement, and it has been aggressive in applying it to every imaginable situation.  In employment, for example, it complains if fire or police departments administer physical or written tests that have politically incorrect results, or if companies use criminal background checks; in voting, it objects if voter ID is required; in education, it is hostile to school discipline policies if they have a disproportionate racial or ethnic result; it has even insisted on drawing distinctions between acceptable and unacceptable pollution, depending on the skin color and national origin of those affected by the pollution.

The disparate impact approach is also used to require the use of a foreign language – on driver’s license exams, for example – on the theory that using only English might have a disproportionate effect on the basis of national origin.  And it has been used to pressure banks with regard to their lending requirements, even though many believe this to have been a contributing cause of the mortgage meltdown and the following recession.

The disparate-impact approach pushes potential defendants to do one or both of two things:  Get rid of perfectly legitimate selection criteria, or apply those criteria in a race-conscious way so that the resulting racial double standard will ensure that the numbers come out right.

In other words, we’re supposed to stop judging people by the content of their character, and start judging them by the color of their skin.

One would also expect that, if the government favors the use of the disparate-impact approach, it would at least answer some fundamental questions like how to measure the kind and degree of disparate impact that is required and what sort of rebuttal is needed. But usually there’s none of that, and the resulting problems are myriad and severe.

For example, what should decisionmakers do if a practice has a disparate impact in one geographic location but not in another?  Or, if the impact ebbs and flows over time?  What should landlords do if a policy (for instance, excluding felons as tenants) has an unfavorable disparate impact on potential tenants of a particular race, but is welcomed by the incumbent tenants who are predominately of that same race?

And what if a practice is favorable for some racial minority groups (say, Asian Americans) but not for others (say, Latinos) — and, what’s more, the opposite is at the same time true for some minority subgroups (thus, unfavorable for Hmong but favorable for Cuban Americans)? And remember, too, that “majority” groups — whites and men and Christians, for example — must be able to bring these lawsuits, too, or you’ve added an even greater equal protection problem.

Thus, for example:  (a) a foreclosure policy may have no disparate impact on a particular group in pre-recession 2006, but a severe one in 2009; (b) an income-requirement may have no disparate impact on Latinos in Nashville but a severe one in Denver; this may mean that two companies with identical policies have very different liability risks, or the same company may be liable in one city but not in the other (but should the cities be considered separately if it’s the same company?); and (c) the use of credit scoring may have a disparate impact on Latinos but not Asians, but there may be no disparate impact on Cubans and a severe one on the Hmong.

It is astonishing to interpret a national civil-rights statute in a way that makes identical conduct in one city illegal while allowing exactly the same conduct in another city, just because of the different racial makeup of the two cities.

The fact of the matter is, there is probably NO selection criteria that does not have a disparate impact on some group or subgroup.

There’s an even more fundamental problem: It is often hard to say whether the impact a practice has on a group is adverse or not.  In fact, all three cases that the Supreme Court has recently granted review in, involving the use of “disparate impact” under the Fair Housing Act, illustrate this.  In the first, was it bad for blacks that landlords who disproportionately rented to blacks were being cited for violating safety and health code requirements?  That was the claim!  In the second, was the urban renewal there bad for blacks?  That was the claim there, too.

And in the case currently before the Court, is it bad for blacks that low-income housing is being disproportionately located in black areas?  Once again, that is the claim. But poor black people might prefer to have housing opportunities near where they already live rather than a long way away, and they could complain about the disparate impact of deliberately changing the system so that they had fewer such opportunities.  Yes, it might interfere with social engineering that would force blacks to relocate to white areas, but might not even the aim of greater integration be met, at least to some degree (depending on racial breakdown of low-income housing recipients — a breakdown that might vary from city to city and county to county) by encouraging non-blacks (not just whites, but also Latinos and Asians) to live in black areas?

These problems make it difficult to decide not only whether there is a disparate-impact in the first place, but also how to weigh properly the defendant’s rebuttal, which in the public housing context, for example, will often involve balancing myriad and hard-to-quantify interests.

Here’s the most fundamental point of all:  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. But this option holds little interest on the political left.

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One other item:  I’ve written recently about the Center for Equal Opportunity’s opposition to the automatic reenfranchisement of felons.  Well, the Maryland state legislature has sent to its new Republican governor Larry Hogan a bill that would relax the state's already liberal felon voting law so that felons would be able to vote automatically on release from prison — and even if they have not completed their parole and probation.

Such automatic reenfranchisement is premature and unwise,   If you aren’t willing to follow the law yourself, then you can’t demand a role in making the law for everyone else, which is what you do when you vote.  The right to vote can be restored to felons, but it should be done carefully, on a case-by-case basis after a person has shown that he or she has really turned over a new leaf, not automatically on the day someone walks out of prison.  After all, the unfortunate truth is that most people who walk out of prison will be walking back in.  See this paper, just published by the Heritage Foundation, that I cowrote. 

Governor Hogan should veto this bill.