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Disparate Impact and Criminal Justice

The Obama administration’s efforts to apply “disparate impact” theory to the criminal justice system continue.  In a “Dear Colleague” letter to state and local courts last week, the administration warned, “In court systems receiving federal funds, these practices [i.e., the enforcement of fines and fees] may also violate Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, when they unnecessarily impose disparate harm on the basis of race or national origin.”

The trouble is that the enforcement of just about any criminal law is going to have a disproportionate impact on some racial or ethnic group — unless, perversely, law enforcement officials engage in race-based decisionmaking in their enforcement of those laws.  But, of course, politically correct race-based decisionmaking by government officials is precisely what this administration likes and wants. 

Not incidentally, the administration is quite wrong to say that Title VI incorporates a “disparate impact” standard; the Supreme Court has ruled repeatedly that it does not.  But unfortunately that has not stopped the Obama administration from aggressively using its Title VI regulations and rules in this way.

A Pleasant Surprise – There was a pleasant surprise in Inside Higher Ed this week:  an article, involving student discipline, that does not complain about racial discrimination.  “Inspired by findings of bias at the K-12 level, a study sought to see if higher ed officials would impose harsher penalties on hypothetical black students than on white ones” — and found that, no, they did not. 

By the way, I noted that, while it’s true that there are studies to the contrary regard K-12 school discipline, “There's also evidence that the racial disparities in K-12 suspensions are explained by differences in behavior rather than discrimination.”  

But this fact is routinely ignored, I’m afraid.  For example, a New York Times story last week headlined “Disparities in Discipline Found in Charter Schools” did not note any effort to control for this variable.

Politics and Hypocrisy in the Merrick Garland Nomination – There’s been lots of ink spilled on President Obama’s nomination of Merrick Garland to the Supreme Court.  I’ll just make two quick points.

First, in listening to the President’s speech making the announcement, I have to say that it was really, really rich to hear any liberal bemoaning politics getting mixed into the judiciary and to hear this president in particular lecturing anyone on following the Constitution. 

Second, and speaking of which, I wonder if it is just a coincidence that the announcement was made right after the big primary results involving Ohio, Florida, and several other states.

Consider:  If it were more certain that Donald Trump would be the Republican nominee, as it would have been had he won Ohio, then perhaps there would have been less reason to push aggressively a (relatively) moderate appointment this year — that is, less reason to think that someone other than Hillary Clinton would be making the appointment if it waited until next year, and less reason to fear that the appointment could be made by Ted Cruz, an actual conservative. 

Lamar Alexander versus the EEOC – Finally, I want to give a lengthy but well-deseved shout-out this week to Sen. Lamar Alexander, who has been rightfully aggressive in keeping tabs on the Obama administration’s Equal Employment Opportunity Commission.
Last week he introduced legislation to subject the Obama administration to its own proposal to increase by 20 times the employment data it currently collects from each of the 61,000 private employers on their 63 million employees.

Sen. Alexander said, “This agency is supposed to be protecting American workers from discrimination. Instead it’s coming up with an absurd rule forcing employers to submit new pay data on 63 million private sector employees. This legislation would give the EEOC a dose of its own medicine — requiring them to collect the same data on federal employees, to see how much that costs in time and money before it makes that requirement of 61,000 private sector employers.”

Currently, according to Sen. Alexander’s press release, the EEOC requires employers with 100 or more employees to submit to the agency 180 different pieces of information about those employees each year. Under the EEOC’s new rule, that number would increase by 20 times, from 180 to 3,660 for each employer’s establishment.

The new bill, titled the “EEOC Reform Act,” would require the EEOC to calculate the cost of imposing its own rule on the federal government so that the EEOC better understands the burden the rule adds to private employers.

Alexander noted that it’s “especially ironic that the rule has been submitted for review under the Paperwork Reduction Act.”

Alexander added that what the EEOC should instead be doing is working through its backlog of more than 76,000 unresolved complaints of discrimination.

This new rule is likely to worsen that backlog, Alexander said, as the agency cannot handle its current complaints of discrimination and will now be sifting through the millions of pieces of new data.

Alexander also noted that, in 2014, he released a staff report on the EEOC that found the agency was pursuing high-profile lawsuits without a complaint, while facing a backlog of almost 71,000 unresolved complaints of discrimination from individuals who filed charges (that number has since increased to more than 76,000).

Sen. Alexander’s new bill would require the EEOC to reduce its backlog from 76,000 unresolved complaints to 3,660 — the same number of unresolved cases as the number of data points required by the new EEOC rule — before it can impose the proposed rule.