Happy Talk | Center for Equal Opportunity

Let me elaborate a bit on the important development, regarding the Trump administration and the dubious “disparate impact” approach to civil-right enforcement, that I discussed in an earlier email this month.

Not only has the Trump administration done the right thing in rescinding the Obama-era guidance aggressively taking the “disparate impact” approach with respect to school discipline, but the Washington Post reports that this action reflects a larger skepticism in the administration about the approach throughout executive-branch agencies.
Good. As conservatives have long argued, this approach to civil-rights enforcement is bad law and bad policy for any number of reasons. We’ve also urged an administration-wide review like the one that is apparently being undertaken. Kudos to the administration.

The Washington Post article prompted, predictably, a New York Times editorial lamenting the administration’s apparent dislike of the approach. But the Times editorial, like the Post article, had to concede that conservative criticism of “disparate impact” is nothing new. Indeed, I’d like to thank the Times for its hyperlink to an old Reagan/Meese-era report on the legal and policy problems that the disparate-impact approach raises: Though some of the legal discussion is dated, it’s otherwise excellent.

One hopes that, if the issue is framed for the Trump administration as, “Do you want to follow the New York Times editorial board, or the Reagan administration and conservatives?,” then it will do the right thing.

Any policy that is nondiscriminatory on its face, nondiscriminatorily intended, and nondiscriminatorily applied is nondiscriminatory — even if it happens to lead to politically incorrect statistical results. Conversely, requiring people to adopt policies with an eye on achieving politically correct racial results means we will have quotas rather than good selection practices.

Finally, in more happy news in a not wholly unrelated matter, Chai Feldblum has left the U.S. Equal Employment Opportunity Commission — another result that I and other conservatives have been working for.

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Challenge to Mayor de Blasio’s Anti-Asian American Scheme – Last month, our ally Pacific Legal Foundation filed a lawsuit challenging Mayor de Blasio’s plan to limit use of the standardized test that up to now has been used to determine admission to New York City’s elite high schools.

The mayor is unhappy with the current racial and ethnic mix of students passing the test, which is heavy on Asian Americans and light on blacks and Latinos. So his plan is to set aside 20 percent of the slots from now on for students who didn’t quite make the test’s cut but do go to schools that have been chosen because of the fact that mostly black and Latino, and relatively few Asian American, students go to them.

You can read more about the lawsuit here, and more about the mayor’s racial motives and why they’re unconstitutional in my earlier post here.

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Recommended Reading and Listening – The U.S. Commission on Civil Rights recently released a report on police practices, which was described to me by one staffer as “adopt[ing] the Black Lives Matter narrative (in more refined tones).” Fortunately, the two sane members of the Commission — Peter Kirsanow and Gail Heriot — took issue with it. The full report is available here, Mr. Kirsanow’s dissent is here, and Professor Heriot’s statement is here.

Speaking of Professor Heriot, she has noted that last month marked an anniversary of sorts, namely the oral argument before the Supreme Court the second time around in Fisher v. University of Texas at Austin, in which the Court reviewed the school’s use of racial and ethnic admission preferences. The oral argument is notable because in it the late Justice Scalia raised the mismatch issue — i.e., that by admitting students with academic qualifications significantly lower than the rest of the student body’s, which is the way racial preferences in fact work, there is now overwhelming evidence that those students are being set up to fail, being less likely to graduate, earning lower grades, and being more likely to switch majors from, say, chemical engineering to microaggession studies. Professor Heriot helpfully provides links to her own work here and here, and of course she notes the book on this subject, Mismatch by Richard Sander and Stuart Taylor, Jr.

And speaking of Mr. Kirsanow, he notes a recent study finding that white liberals — brace yourselves — tend to patronize racial minorities: What’s more, the study likewise finds that conservatives are more likely than liberals to treat minorities as equals. Mr. Kirsanow says his own experiences bear this out, and indeed that the study “merely confirms what black conservatives concluded sometime during the Mesozoic Era.”

I also want to mention that, at the Federalist Society’s annual convention recently, there was an excellent panel discussing the lawsuit that has been brought against Harvard for admissions discrimination against Asian Americans. On the panel, which was moderated by Judge James Ho of the U.S. Court of Appeals for the Fifth Circuit, were Patrick Strawbridge, a partner at the law firm representing the plaintiffs; Dr. Althea Nagai, research fellow at the Center for Equal Opportunity and author of two papers this year critiquing Harvard’s policies; Professor John Yoo, who recently coauthored an excellent NRO post calling for the Supreme Court to put an end to this discrimination; and Professor Andrew Koppelman, whose defense of racial preferences ought to leave Harvard worried. You can watch the panel discussion here.

Finally, here’s a second item for your listening pleasure, namely a recent radio interview of yours truly on the school discipline/disparate impact issue that began this email.

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