Disparate Impact Delenda Est | Center for Equal Opportunity

Happy New Year! And I’m happy to be able to start 2019 with some good news: The Trump administration appears to be headed in the right direction on the issue of “disparate impact.” Below are slightly edited versions of my latest three posts over the holiday season and into the new year on National Review Online, each dealing with this important issue.

I should add that, at the end of last week, the Washington Post had a news story confirming this trend, and predictably the New York Times had an editorial over the weekend decrying it — but both the Post (quoting me) and the Times (linking to a Justice Department study from the Reagan administration) conceded that conservatives have always rejected this approach to civil-rights enforcement.

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Good Recommendation from Federal Commission on School Safety

Among the recommendations in the final report of the Federal Commission on School Safety issued — and one already resulting in predictable condemnation from the Left and distorted reporting by the MSM — is that the Obama-era guidance aggressively applying the “disparate impact” approach to school discipline be rescinded.

I wrote against this guidance on National Review Online the day that it was issued and have criticized it repeatedly since then. The guidance’s hyper-aggressive application of the “disparate impact” approach — which requires only statistical disparities rather than actual discrimination for there to be legal violations — to schools’ discipline policies was bad policy and bad law, as the Commission report persuasively documents.

As a policy matter, there is overwhelming evidence that the Obama-era policies culminating in the guidance have pushed schools not to discipline students who ought to be disciplined, simply to avoid politically incorrect numbers. Ironically but predictably, the victims are likely to be well-behaved poor and minority students, along with their teachers, since it is their classrooms that become disrupted and dangerous.

As a matter of civil-rights law, the Education Department lacks authority to use the “disparate impact” standard in enforcing Title VI of the 1964 Civil Rights Act because the Supreme Court has ruled it bans only “disparate treatment.” That’s why ultimately the administration should promulgate new regulations that make clear that the disparate-impact approach won’t be used in this area anymore. In any event, and in the meantime, the guidance’s hyper-aggressive approach violates other Supreme Court and lower federal-court decisions, including a ban on racial quotas in school discipline, and this should be stopped immediately through the guidance’s rescission.

Finally, as a matter of legal procedure, the guidance violates both the Congressional Review Act and the Administrative Procedure Act.

Defenders of the guidance claim that it is needed to stop racial discrimination in the application of school discipline, but this is simply not true: Any true discrimination can be addressed without using the disparate-impact approach, which actually results in more racial discrimination and not less. In all events, as discussed, the guidance violates the law in a number of ways, and has enormous policy costs that overwhelm any dubious policy benefits.

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Great News: Administration Rescinds Obama School Discipline Guidance

The Education Department and Justice Department have, per the Commission recommendation just discussed, jointly rescinded the Obama era guidance that aggressively applied the “disparate impact” approach to school discipline policy. That approach makes it a civil-rights violation if a school policy has racially disproportionate statistical results, even if the policy is racially neutral by its terms, in its intent, and in its application.

This is welcome news, because — as yours truly and other conservatives have said from the day that it was announced — the guidance is bad law and bad policy, and its principal victims have been students (ironically but predictably a disproportionate number of whom are poor and minority) who want to learn but whose classrooms become disrupted and dangerous because schools are reluctant to discipline students who ought to be.

So we should loudly applaud this development, but it is also only the first step, and now the administration must take two more. In the short term, it needs to ensure that the bureaucracy follows the law, so that at a minimum it follows the constraints that the courts have put on any use of the disparate-impact approach, and which the guidance ignored.

The step after that is the most important: The administration must clarify through a new rule that the disparate-impact approach will not be used in the enforcement of Title VI of the 1964 Civil Rights Act. The legal point to be made here is that the Supreme Court has made clear that this statute bans only actual disparate treatment on the basis of race; and indeed if, as the Court has also ruled, even Congress in enforcing a disparate-treatment constitutional ban generally cannot use the disparate-impact approach, then it follows a fortiori that a mere agency cannot use that approach — which actually requires race-based decision making — in enforcing a statute that

Congress has already decided bans only disparate treatment. The policy point is that the disparate-impact approach is not needed to ensure nondiscrimination; and even if once in a great while it might be a handy tool, that dubious and marginal benefit cannot outweigh the heavy price that the approach has been shown to have in encouraging racial quotas and in discouraging perfectly legitimate government objectives, like maintaining order in our schools.

But all that can wait until after Christmas. Meanwhile, kudos to the administration!

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Disparate Impact Again – This Time in Housing

Once again the Left is insisting that, if you don’t favor using the “disparate impact” approach in civil-rights enforcement to the nth degree, then you are a racist, and the MSM can be counted on to accept this narrative uncritically. We recently went through all of this with respect to school discipline, and now a front-page story in the Washington Post does the same thing with respect to housing.

A housing policy that actually treats people differently with regard to skin color — “disparate treatment” — is wrong and illegal and should be challenged, and there is no evidence that Ben Carson and the Trump administration’s Department of Housing and Urban Development disagree. The problem is when a policy is nondiscriminatory on its face, in its intent, and in its application — but also leads to politically incorrect racial numbers, or “disparate impact.” So, for example, a landlord prefers not to rent to people with a history of violent crime or not paying bills, and follows that policy without regard to race, but as a result refuses a higher percentage of, say, African American applicants than, say, Asian American applicants.

To call this policy discriminatory, let alone racist, is quite a stretch not only as a matter of language but also as a matter of law and policy. And note that, to the extent that such policies are challenged, those hurt most will include other tenants in high-crime areas, who are themselves likely to include a disproportionate number of African Americans.

So here’s hoping that the Trump administration will stick to its principles, and be aggressive in challenging actual racial discrimination in housing, but very cautious in its use of the disparate-impact approach. (Some recognition of it, alas, may be inevitable given a poor 2015 Supreme Court decision in this area; that’s not the case, thankfully, with respect to school discipline.)

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Addendum: Speaking of the issue of school discipline and disparate impact, we recently posted on the CEO website this article defending Hans Bader, one of our best allies on this issue, from false statements made regarding his critiques of the Obama guidance. Among the points made in the article we posted are: (a) Disparate impact may not legally be applied to Title VI in light of the Supreme Court’s 2000 decision in Alexander v. Sandoval; (b) the pressure to reduce black suspension rates has led to quotas; and (c), most importantly of all, the Obama guidance did not adopt any meaningful limits on disparate impact, such as the “qualified population” limit found in a 1989 Supreme Court ruling (Wards Cove Packing Co. v. Atonio), making its approach extremely aggressive even assuming the federal government has any authority to ban “disparate impact” under Title VI regulations at all.

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