Misplaying the Race Card | Center for Equal Opportunity

In a recent civil-rights case, EEOC v. Kaplan Higher Learning Corp., the Obama administration is suing Kaplan for running credit checks on employee applicants. Kaplan had learned that some of its employees had misappropriated student payments and so, to provide safeguards against this behavior, Kaplan began screening its applicants for major red flags in their credit history. The Obama administration sued Kaplan, arguing that it cannot use credit checks that has a “disparate impact” on black applicants.

But there was a major problem with the government’s argument: Kaplan’s applications for employment do not ask for a person’s race. As a result, Kaplan had absolutely no data to determine if the credit checks were harming black applicants more harshly than white applicants, because race was wholly irrelevant to Kaplan.

Undeterred, the Obama administration subpoenaed the DMV records of applicants who had been denied employment with Kaplan. It then hired a group of “experts” to determine whether the applicants looked like individuals of a certain race. Then, based on the perceived skin color of the individuals in their DMV photos, the EEOC determined that Kaplan’s credit checks had a disparate impact on black job seekers.

Fortunately, the judge in the case rejected this “evidence” outright, holding that the EEOC “fails to present sufficient evidence that the use of ‘race raters’ is reliable.” Interestingly, the judge also noted that the EEOC itself forbids precisely this type of stereotyping: “In fact, the EEOC itself discourages employers from visually identifying an individual by race and indicates that visual identification is appropriate ‘only if an employee refuses to self-identify.’ … According to the EEOC, it implemented these guidelines not because of the accuracy of visual identification, but to facilitate and respect ‘individual dignity.’ Regardless of the reason supporting the pronouncement, it is clear that the EEOC itself frowns on the very practice it seeks to rely on in this case and offers no evidence that visual means is a method accepted by the scientific community as a means of determining race.”

And so much, by the way, for the claim that all “disparate impact” lawsuits do is make it possible for the government to uncover well-hidden racial discrimination: In this case, obviously, Kaplan could not have been treating its applicants differently on the basis of race, because it didn’t even know their race.

Most of this discussion, by the way, is taken from this great post by Joshua Thompson, one of the stars at the stellar Pacific Legal Foundation, with whom the Center for Equal Opportunity does a lot of work.

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There’s plenty of racial silliness at the state level, too. Maryland gives preferential treatment in state contracting to minority-owned companies that are considered to be “economically disadvantaged,” and a bill has been introduced in the Maryland state legislature that will apply this label to anyone whose personal net worth is $3,000,000 or less (the old cutoff was $1,500,000). That is, you can have a personal net worth of $3,000,000 and still be considered economically disadvantaged and eligible for the preference.

Legislation has also been proposed to exclude from the program nonprofits, which typically deal with physically and mentally disabled individuals. And yet, these programs are supposed to be all about “compassion” for the less fortunate.

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Retired New York City public schoolteacher Mark Schulte, in a New York Post op-ed last week on “Race, the UFT, and NYC’s Top Schools,” makes the right diagnosis, but his prescription is only half-right. He says, “I don’t think the problem is the [Specialized High Schools Admissions Test]. My decades of teaching in the city schools tell me that a big reason Asian kids are doing so well is family support (and ‘Tiger Mom’-style pressure). The answer is to provide more support to black and Hispanic kids in the years before they take the test.”

He’s right to point to family structure (nationally, more than 7 out of 10 African Americans and more than 5 out of 10 Latinos are born out of wedlock, versus fewer than 3 out of 10 non-Hispanic whites and 2 out of 10 Asian Americans). But why should the additional tutoring and other support be limited to blacks and Hispanics, rather than being made available to all kids who can use it?

While a higher percentage of blacks and Hispanics can benefit from these programs, there are plenty of white and Asian kids who can, too, and there is no need to exclude them because of skin color.

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Relatedly, Christina Hoff Sommers had an interesting op-ed in that other New York newspaper (the Times) over the weekend, on “Boys at the Back,” with the teaser description, “Boys are being left behind in educational advancement. We need to address the reasons.” I published this comment: “I suspect the fact that more and more children are being raised in homes without a father is a factor, too. This is not a good thing for boys or girls, but the rising illegitimacy rate is probably a particular problem for the former. If that’s true, then you would expect to see the boys-girls disparity as worse in those demographics that have higher illegitimacy rates, and sure enough the op-ed here singles out ‘black, Latino and lower-income kids.’ Note that 72 percent of African Americans now are born out of wedlock, and more than half of Hispanics; and Kay Hymowitz, Charles Murray, and others have documented how, increasingly, illegitimacy is becoming the norm in lower class, but not upper class, families across racial lines.”

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And speaking of race and education: “A Supreme Court decision on whether universities can use race as an admissions factor is expected by June, however the court of public opinion has already weighed in on the matter — and Americans of all stripes stand largely against affirmative action, according to a variety of recent polls.” Read all about it in The College Fix, here.

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Finally, to end on another bit of good news: Glad to see there was a nod toward assimilation in the “Gang of Eight” immigration-bill framework (“learn English and civics”). Whatever bill moves forward, it needs to address this issue. That’s because, whatever the number of immigrants we end up welcoming to America, we all need to be agreed that, when you come to America and stay, then you need to become an American. E pluribus unuum.

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