Needed: A Disparate-Impact Inventory | Center for Equal Opportunity

I’ve given kudos to the Department of Justice for its filing against Harvard in the lawsuit where the school is charged with discrimination against Asian Americans in admissions. (That’s a case where the Center for Equal Opportunity has also filed an amicus brief and published two papers, by the way.) Here’s hoping that the administration will likewise oppose politically correct preferences in employment and contracting; for the latter, especially, there’s much the federal government needs to do to put its own house in order.

The other big area of race-based decision-making is the application of the “disparate impact” approach to civil-rights enforcement. That’s the theory that, if a policy leads to racial imbalances, it is presumptively illegal — even if the policy is nondiscriminatory by its terms, in its application, and in its intent. The result is that decision-makers are driven to adopt policies not because they make the most sense but with an eye on racial results — which is not only inefficient and unfair but exactly the opposite of what the civil-rights laws and indeed the Constitution are supposed to be about.

Here again, the courts are to blame for much of this nonsense, but here again there’s also much that the executive branch has done to make matters worse. In particular, federal agencies are honeycombed with policies that adopt the disparate-impact approach, and the Trump administration needs to root them out.
Fortunately, Gail Heriot — a professor at the University of San Diego law school and one of two sane members of the U.S. Commission on Civil Rights — has written an excellent paper describing how this might be done.

The paper begins by pointing out the constitutional problems with the disparate-impact approach and why its use triggers (and would likely fail) “strict scrutiny,” the Supreme Court’s toughest standard, requiring a showing of “compelling interest” and “narrow tailoring.”
Professor Heriot then proposes what she calls a “Disparate Impact Inventory.” She urges the attorney general “to send a letter to all agencies within the government that enforce any sort of anti-discrimination statute, regulation, or policy and to ask the following questions,” namely:

Do you consider your statute, regulation, or policy to impose liability for disparate impact?
If so, what is the legal basis for that view?
How does disparate impact liability work under that statute, regulation, or policy (e.g. what defenses apply), and what is the agency’s legal basis for thinking so?
Finally, why does the agency believe disparate impact liability will survive strict scrutiny? What’s the compelling interest? Why is it narrowly tailored to achieve that purpose?

Relatedly, Mike Gonzalez and Hans von Spakovsky of the Heritage Foundation have published this paper, on page 9 of which appears an executive order I’ve drafted that would also address executive-branch racial-preferences and disparate-impact policies. To save you the trouble of clicking onto that link, though, here’s my suggested executive order:

Section 1. (a) It is the policy of the Executive Branch not to discriminate or give preferential treatment on the basis of race, color, national origin, or ethnicity in any of it programs or activities. Unless there are statutes or regulations requiring such discrimination or preferential treatment, no Executive Branch program, activity, or official shall engage in it.

(b) Each agency shall, no later than [date], examine its regulations and relevant statutes to determine if any of them contain such requirements or permitting of discrimination or preference. Where such regulations are found, the agency shall prepare, no later than [date], an amendment to such regulation ending the requirement or permitting of such discrimination or preference and forward it to the Attorney General for his review prior to publication in the Federal Register. Where such statutes are found, the agency shall, no later than [date], prepare a proposed amendment ending the requirement or permitting of such discrimination or preference and forward it to the Attorney General for his review prior to submission to Congress.

(c) Classifications on the basis of race, color, national origin, or ethnicity may be used for purposes of epidemiological research, identification of specific criminal suspects, and such other limited purposes if and only if the Attorney General determines that those classifications are consistent with the Constitution and the President has determined that they are necessary for the furtherance of a compelling public policy.

Section 2. (a) It is the policy of the Executive Branch not to use the disparate-impact approach in the enforcement or application of any civil-rights law. Unless there are statutes or regulations requiring the approach, no Executive Branch program, activity, or official shall use it.

(b) Each agency shall, no later than [date], examine its regulations and relevant statutes to determine if any of them contain such requirements or permitting of that approach. Where such regulations are found, the agency shall prepare, no later than [date], an amendment to such regulation ending the requirement or permitting of such approach and forward it to the Attorney General for his review prior to publication in the Federal Register. Where such statutes are found, the agency shall prepare, no later than [date], a proposed amendment to such statute ending the requirement or permitting of such an approach and forward it to the Attorney General for his review prior to submission to Congress.

* * *

In the news last week was that President Trump is thinking of signing an executive order to end birthright citizenship. That’s a bad idea.

Regarding the law, there are more elaborate scholarly treatments, but here’s a brief article I wrote years ago. He’ll lose badly in the courts.

Regarding policy, here’s something else I wrote around the same time (item #2). And even if you think, as some do, that Congress can define the scope of citizenship in this regard, it would not follow that the president can on his own. Conservatives should insist in this context, as in others, that the Constitution be followed.

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