Disparate Impact

As the recent articles here and here discuss, the combination of the Obama administration and Mayor Bill de Blasio has proved toxic for safety and order in New York City public schools. On top of that, the New York Board of Regents announced last week that it was no longer going to require aspiring teachers there to pass a literacy test. The reason for this madness is in both instances the same: the felt imperative of getting the numbers right, of getting rid of any standard that might have a “disparate impact” on the basis of race or ethnicity. If discipline standards and literacy requirements …

The “disparate impact” approach to civil-rights enforcement is bad policy in any area —employment, voting, housing, credit, school discipline, policing, pizza delivery (yes, it’s been applied there, too), you name it — but it is perhaps most bizarre in environmental law, where it’s labeled “environmental justice.”  The approach in general considers it to be illegal discrimination if a practice has a statistically disproportionate racial effect, even if the challenged practice is neutral by its terms and in its intent, and is evenhandedly applied. So, for example, if a landlord prefers not to rent to people with a record of violent-crime convictions, …

Last week I spoke at the law school for the University of Missouri at Kansas City against the use of a “disparate impact” approach in civil-rights law.  It went very well, and I thought in this week’s email I would give you a summary account of what I said.  It’s similar to a talk I gave at Harvard Law School not too long ago, with the difference that last week I also had some excellent barbecue afterwards. Under a disparate-impact claim of discrimination, discriminatory motive is irrelevant: It need not be alleged nor proved, and it doesn’t even matter if …

The Obama administration’s efforts to apply “disparate impact” theory to the criminal justice system continue.  In a “Dear Colleague” letter to state and local courts last week, the administration warned, “In court systems receiving federal funds, these practices [i.e., the enforcement of fines and fees] may also violate Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, when they unnecessarily impose disparate harm on the basis of race or national origin.” The trouble is that the enforcement of just about any criminal law is going to have a disproportionate impact on some racial or ethnic group …

The libertarian Cato Institute was kind enough to ask me to contribute an article to its annual Cato Supreme Court Review, inviting me to write on the Supreme Court’s recent (and unfortunate) decision to allow “disparate impact” causes of action under the Fair Housing Act.  So I thought I would excerpt some of that article for this week’s email, and have done so below.  You can read the full article here.  I should also note that last week I spoke at Cato about the case on a civil-rights panel.  You can watch the event here (“Panel II:  Civil Rights”); I’m …

The Supreme Court last week ruled 5–4 (Justice Kennedy writing the majority opinion, joined by the four liberals) that “disparate impact” claims may be brought under the Fair Housing Act. The Court’s decision is, needless to say, disappointing. It fails to follow the clear language of the statute, and it will encourage race-based decision-making in the housing area — exactly what the Fair Housing Act was meant to prohibit. The only silver lining is that Justice Kennedy’s opinion itself recognizes this problem, and some of the language toward the end will be useful in stemming the worst abuses. To elaborate: …

Last week I spoke at Harvard Law School against the use of a “disparate impact” approach in civil-rights law.  It went very well, and I thought in this week’s email I would give you an account of what I said. Under a disparate-impact claim of discrimination, discriminatory motive is irrelevant: It need not be alleged nor proved, and it doesn’t even matter if the defendant proves that there was no discriminatory motive. If a policy or procedure results in a disproportion of some sort — not only on the basis of race, color, or national origin, but also religion, sex, …

It’s felicitous that two days after Martin Luther King Day this year, the Supreme Court will be hearing oral arguments in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project. This case involves the “disparate impact” approach to civil-rights enforcement, and that approach is contrary to Dr. King’s famous dream of a day when Americans would be judged by the content of their character rather than the color of their skin. Suppose that the owner of an apartment complex decides that she does not want to rent units to people with recent convictions for violent crimes. She …

Here’s hoping the third time’s the charm.  The Supreme Court last week granted review in a case presenting the issue whether “disparate impact” claims may be brought under the Fair Housing Act. This is the third term in a row the Court has done so; in the preceding two, the Left succeeded in scuttling the cases before the Court could decide them.  In a disparate-impact case, the plaintiff does not have to prove racial discrimination, but only a racial disproportion.  So, for example, a landlord who refused to rent to people with a history of drug-dealing, or had income below …

As Eric Holder’s Justice Department attacks voter-ID laws in Texas and North Carolina, Hans von Spakovsky of the Heritage Foundation and I have written a paper that warns the courts that they should be wary of construing Section 2 of the Voting Rights Act to find liability when only a “disparate impact” on the basis of race has been shown. “Disparate impact” is the favored but dubious legal theory of the Obama administration. It’s being used to attack everything from election integrity to the financial industry when DOJ doesn’t have any evidence of intentional discrimination. This theory lets DOJ attack …