The Center for Equal Opportunity had urged the Court to grant review in this Mt. Holly v. Mt. Holly Gardens Citizens in Action, as discussed here, and we’re glad that the Court did so this week.
It presents the issue — never resolved by the Court — whether a “disparate impact” cause of action may be filed under the Fair Housing Act. Such a cause of action alleges “discrimination” based on statistical imbalances, and notwithstanding the fact that the challenged practice is nondiscriminatory by its terms, in its intent, and in its application. So, for example, the refusal to rent to convicted felons, or to sell homes to people with poor work histories, or to rent or sell to people with bad credit ratings — all can be challenged if there is a disproportionate effect on this or that racial group, and then the defendant must prove some degree of “necessity” for the practice.
The Obama administration loves this approach, but here’s hoping the Court nixes it.
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The Equal Employment Opportunity Commission under the Obama administration has likewise made it clear that it objects to criminal-background checks. That’s for employers, mind you, not gun owners. And it’s based on the same “disparate impact” approach, that statistically speaking some racial groups will be affected more than others if companies use these checks.
But the Commission’s objection to companies using criminal-background checks drew some attention last week, including a front-page, above-the-fold story by the Washington Post. The EEOC and its defenders would like the debate to hinge on whether the particular checks by a particular company are all that the good and wise would want them to be. ”It is a fairness issue,” said David Lopez, the Commission’s general counsel.
But there are a couple of more fundamental questions. First, who should get to make these decisions, absent a showing of actual discriminatory intent (again, not alleged here): The person who owns the company or a bunch of federal bureaucrats? And second, remember that the EEOC is not objecting to criminal-background checks per se, no matter how high-handed and unfair they are, so long as they do not have a politically incorrect racial effect. Now, what bearing does that have on a practice’s “fairness”?
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Linda Greenhouse, a Supreme Court columnist for the New York Times, is trying yet again to persuade the Supreme Court not to decide the Fisher v. University of Texas case, in which the Center for Equal Opportunity is urging the Court to end racial preferences in university admissions. Here’s my posted response to Ms. Greenhouse:
It makes perfect sense for the Court to review this issue [of racial admissions preferences] again. For one thing, universities have shown that they cannot be trusted to weigh race only lightly; numerous studies have shown that, despite judicial warning, race continues to be given overwhelming weight. For another thing, the demographics of the country are changing so that, more and more, it is Asian students who are being discriminated against and Latino students who are being given preferential treatment. And there is more and more empirical data to suggest that the purported benefits of using racial preferences have been overstated, and that the costs are much higher (for example, “mismatching” students and schools has been shown to hurt the supposed beneficiaries of preferential treatment). And the issue of the case’s justiciability was exhaustively briefed at the cert stage in the case, with petitioner trouncing the University’s arguments.
As we await the Court’s opinion in Fisher, two recent polls have underscored that the public doesn’t like this kind of discrimination, and indeed likes it less and less with every tick of the clock. You can read about the polls here.
And, if you want still more information on Fisher, you can watch this BBC clip (yours truly appears briefly at the 00:40 mark).
Keep your fingers crossed!
