While Americans overwhelming reject it (see, e.g., this Gallup poll), the Left and Democratic politicians — especially among those running for president — continue to endorse the idea of reparations. I’ve noted before that I testified against this the last time around, and here is an article I had written and included as an appendix to that testimony.
The Bizarre Campaign To Eliminate “Profiteers of Slavery”:
Practical Questions about Chicago Ordinance Are Overwhelming
by Roger Clegg (from Human Events, January 12, 2003)
Last fall, according to its Tribune, Chicago “became the first major city in the nation” to pass a “groundbreaking ordinance requiring all businesses vying for city contracts to search their records and disclose whether they profited from slavery.” Cleveland and New York City are now considering similar laws.
To quote the ordinance itself, any such company “must complete an affidavit verifying that the contractor has searched any and all records of the company or any predecessor company regarding records of investments or profits from slavery or slaveholder insurance policies during the slavery era. The names of any slaves or slaveholders described in those records must be disclosed in the affidavit.”
The last sentence is straightforward enough, and will be useful for plaintiffs’ lawyers looking for clients. But beyond that, I have a few questions about the meaning of the phrase in the first sentence, “investments or profits from slavery or slaveholder insurance policies.”
For starters, may we assume that it’s not enough for a company just to look to see if there is a line in the annual report that says, “Profit from slavery: $1,305.16”? That would be pretty unlikely. So are we to assume that the company is supposed to try to figure out now for itself what the profit was, or at least to collect the relevant records? But the calculations won’t be easy, nor for that matter defining which records are relevant.
I think I know what “slaveholder insurance policies” are, but how do you calculate “profits” from them? You can’t just add up the premiums. You also have to subtract out the payments, right? How about the company’s overhead? Do you have to prorate that, since the policy also probably wrote non-slavery policies? Isn’t that going to be awfully hard to do for 140-year-old transactions?
But the real problem is what is meant by “profits from slavery” or “investments” from slavery. Buying and selling slaves is understandable, but what if you bought cotton from a plantation? What if you bought cloth from an English company that bought cotton from a plantation? What if you bought shirts from a company that bought cloth from an English company that bought cotton from the plantation? Is the company supposed to collect all this information?
What if you sold a plow to a plantation? What if you sold a plow to a plantation but you didn’t know then or don’t know now if it had slaves on it? What if you manufactured plows and sold one to a retailer who sold one to a plantation? What if you don’t know whether the retailer sold plows to plantations or not, or if there were slaves on them?
What if you sold a watch or a newspaper or a train ticket to a slaveowner? What if didn’t keep track of the professions of those to whom you sold these items?
And how, once again, does one calculate the “profits” or “investments” from all this? You can’t just add up the sales; you also have to subtract out the costs, right? How do you tell how much of the profit is from slavery and how much is from some other factor? If you sold a really ingenious plow to a plantation, was the profit because of slavery or because of your ingenuity?
All right. Now suppose that we figure all this out and collect all the information. What precisely is the city going to do with it?
Either it will refuse to do business with companies that “profited” or “invested” in slavery, or not. If the latter, then this whole exercise is pointless, isn’t it? If the former, then how much profit triggers the boycott? A penny? A million dollars? Somewhere in between?
And what, precisely, is the boycott supposed to accomplish? Is it supposed to punish the company? For what–for engaging in what were then perfectly legal activities? For decisions made by people long dead? For profits distributed to shareholders who spent them God knows where and are also long dead?
And, of course, the city will also be punished. After all, if the city refuses to do business with a company with whom it would otherwise have done so, then the city is going to lose money. The company made the city the best offer, but the city decides to pay more by contracting with someone else. So the city–and its taxpayers–will lose out, too. What is that supposed to accomplish?
Just asking. It was a 44-0 vote by the city council, so I’m sure someone has the answers. This couldn’t have been political posturing by all 44, right? Or shouldn’t I ask?
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I have written before about the (good) new disparate-impact regulations that the Trump administration’s HUD department has proposed. Here’s one suggestion I’ve formally submitted on behalf of the Center for Equal Opportunity as part of the rulemaking process, which would address the one big flaw in HUD’s new proposed regs. It’s bit technical, but it’s of significant practical importance, since what I propose would make it much harder to use the Fair Housing Act to require, rather than prohibit, race-based decision-making.
https://www.regulations.gov/document?D=HUD-2019-0067-0406
While the courts have recognized a surrebuttal stage in employment-related disparate-impact cases, this should not be extended to the housing area. That is, HUD should just get rid of the less-discriminatory-alternative requirement in its disparate- impact regulations.
It is not a necessary element of a disparate-impact regulation. Not every disparate-impact statute includes this third part of the test for disparate-impact liability, and thus do not hold an institution liable for disparate impact solely based on the presence of a less-discriminatory-alternative. See, e.g., Smith v. City of Jackson, 544 U.S. 228, 240-42 (2006) (two-part test for disparate impact; defendant wins where challenged policy reasonably advances legitimate goal, even if less discriminatory alternative exists). And it will always be the case that a criterion can be tweaked in some minor way that will allegedly “improve the numbers” (but even this analysis can be tricky, as commenter James P. Scanlan notes in this rulemaking).
More fundamentally, in the housing context the difficulty in following a surrebuttal process is even greater than, say, in employment cases, given the problems with quantifying the housing defendant’s interests, and the fact that those interests may involve a variety of considerations: health, safety, aesthetics, traffic, money, nonracial politics, and so forth. These problems are further aggravated by the fact that, in the housing context, it is often hard to say whether the impact of a challenged practice on a group is adverse or actually favorable to that group — a point made by the majority opinion, Justice Alito’s dissenting opinion, and Chief Justice Roberts during oral argument in the Inclusive Communities case. See Roger Clegg, “Silver Linings Playbook: ‘Disparate Impact’ and the Fair Housing Act,” Cato S. Ct. Rev. 2014-2015, at 180-181, 184-185 n.75.
