Holly, Hemp, Hawaii | Center for Equal Opportunity

The Supreme Court is scheduled to consider at conference this Thursday whether to grant review in Township of Mt. Holly v. Mt. Holly Gardens Citizens in Action, a case presenting the question whether “disparate impact” causes of action (which don’t allege actual discrimination but only statistical imbalances) may be brought under the Fair Housing Act. The Court has recognized but never decided this important issue; indeed, the Court had granted review in another case presenting it just last term, so the odds are good that review will be granted here, too. The Center for Equal Opportunity successfully urged the Court to grant review on the issue last term, and we hope we’ll be successful again this time.

The only thing that has changed since last term is that HUD has issued formal regulations endorsing the disparate-impact approach, but there are a number of reasons why those regulations are entitled to little deference. First and foremost, the meaning of the statute is clear that only actual discrimination — “disparate treatment” — is banned (see our discussion in the Center for Equal Opportunity’s earlier brief, here). Further, the Fair Housing Act has been on the books for 45 years, and during that time the Executive Branch has sometimes used the disparate-impact approach and sometimes not. For example, President Reagan explicitly rejected the approach in signing major amendments to the Act, and his Justice Department argued against it in a brief to the Supreme Court; the Bushes didn’t think much of it, either. The Obama administration, on the other hand, is attempting to game the system here; it orchestrated a rather shady deal with the City of St. Paul to get it to withdraw last term’s cert petition, and meanwhile has worked on promulgating those new regulations. “We were afraid we might lose disparate impact in the Supreme Court because there wasn’t a regulation,” said Sara Pratt, an official in the Department of Housing and Urban Development.

In any event, the principle of deference ought to be trumped in this case by the “constitutional-doubt canon,” as Justice Scalia calls this long-honored principle in his book Reading Law: The Interpretation of Legal Texts. Justice Scalia has also noted, in his concurrence in Ricci v. DeStefano (the New Haven firefighters case), that a statute mandating the disparate-impact approach — and the race-conscious decision-making it inevitably requires — raises serious constitutional issues. The approach raises further constitutional problems here by altering the state-federal balance in far-reaching ways, by rendering race-neutral rules — like rules for preserving order in public-housing projects — suspect. As the Court noted in Miller v. Johnson, “We have rejected agency interpretations to which we would otherwise defer where they raise serious constitutional questions.” I wrote more about the case here.

The Court should take the Mt. Holly case!

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“Blacks Are Singled Out for Marijuana Arrests, Federal Data Suggests”: So reads a headline in last Tuesday’s New York Times. The message of the article (which draws on a report released last week by the ACLU) is that blacks and whites use marijuana at the same rates but blacks are more likely to be arrested for marijuana possession, so therefore discrimination must be afoot.

A few problems here (besides the fact that the headline should read “Data Suggest” rather than “Data Suggests”) : First, it is frequently claimed that this group uses a drug at the same rate as another group, but it is also frequently the case that the data — which obviously have to be taken with a grain of salt in this context anyhow — don’t bear this out (not to mention the fact that there’s a difference between counting those who have ever used a drug versus, say, having used it in the last week). On this first point, though, I’m willing to give the current report the benefit of the doubt.

But, second, even if two groups use marijuana at the same rate, that doesn’t mean we should expect arrest rates to be the same, and on this point the report, as I read it, is faulty. Indeed, the report implicitly acknowledges its limitations in this regard: “A more scholarly analysis would . . . control for a set of time-varying explanatory variables, such as total drug arrests and drug use, to test whether the coefficient on the race variable is statistically significant. Ideally, the multivariate regression analysis would also control for individual characteristics of each arrest, such as amount of marijuana possessed and the age and criminal history record of the individual arrested . . .”

For instance, the police are more likely to be interested in sellers than personal users; accordingly, if one group is more likely than another to be involved in sales, it is more likely to see arrests. Likewise, people who buy or sell a drug in open-air markets are more likely to attract police attention than those who sell drugs more discreetly. And I think this makes perfect sense and has nothing to do with discrimination: Not only is it easier to make arrests in this context, but there are fewer privacy concerns and such markets are especially objectionable to the law-abiding folks who find them in their neighborhoods. If the police ignored them, no doubt they would be called racist for that.

My point here is not to defend the marijuana laws and the way they are enforced, but to note that this report doesn’t make the case that there is racist policing.

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Speaking of Asian Americans and Pacific Islanders (as I did in last week’s email), the Chronicle of Higher Education last week had an opinion piece that complains about lumping the two together. It’s a tragic “misclassification,” you see, because while Asian Americans may be overrepresented (and thus not deserving of preferential treatment), Pacific Islanders are underrepresented (and thus do deserve preferential treatment). But as I said in my post on the CHE website:

Here’s a wild idea: Let’s give no preferential treatment to ANYONE on the basis of skin color or national origin!

That seems an especially attractive – indeed the only tenable — course as America becomes increasingly a multiethnic and multiracial society, and where individual Americans are themselves more and more likely to be multiethnic and multiracial (starting with our president). As the article shows, it also avoids the problem of having to decide how to subdivide different groups: Perhaps Latinos as a whole are “underrepresented,” but not Cubans or not Chileans; or perhaps whites generally are “overrepresented,” but not Ukrainians, unless you further subdivide Ukrainians by religion, in which case some of them are overrepresented and some are underrepresented and some are represented just right; etc. Judge people as individuals, and dispense with the bean counting.

By the way, and just out of curiosity, into which category do Japanese Americans fall? Also, the Taiwanese? That question about whether Japan and Taiwan are “Asia” or “Pacific Islands” prompted an interesting exchange with a former law-school classmate, who suggested that it depends on whether the island is on or off the Asian continental shelf. He may well be right as a matter of geology and geography, but query whether such distinctions really make sense under the Equal Protection Clause and civil-rights statutes.

It’s not that it’s irrational to subdivide these groups when analyzing their culture and history. To the contrary: The need for such dividing, subdividing, and sub-subdividing underscores how dubious it is to use race as a proxy for perspectives and experience. If we look at individuals, on the other hand, we avoid not only the constitutional problem of racial/ethnic discrimination, but also the inaccuracies inherent in stereotyping.

And remember that the individuals involved here are generally Americans — it’s only their ancestors who actually are from this or that island, etc. — which makes the stereotyping and preferential treatment even more dubious.

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