Law & the Courts

The Corner

‘Disparate Impact’ in the News

The two worst ways the civil-rights laws have been twisted over the years are: (1) allowing, and even requiring, politically correct preferential treatment on the basis of race, ethnicity, and sex (even though such discrimination is actually prohibited by the texts of the relevant laws); and (2) prohibiting actions that are not actually discrimination at all, but the neutral application of neutrally defined and neutrally intended standards that happen to have a statistically disproportionate result (this is also commonly done without a statutory basis).

On the first point, the Trump administration appears to be off to a good start, with its aggressive investigation of “affirmative action” in student admissions to Harvard. Like many selective schools, Harvard gives racial preferences to African Americans and Latinos over whites and Asian Americans. What’s more, the Justice Department this week filed a brief opposing a politically correct but racially exclusive election in Guam.

And there are good signs now on the second point, too. This “disparate impact” approach to civil-rights enforcement was much beloved by the Obama administration, but recent news stories suggest that the Trump administration may be rethinking it, in the context of school discipline and home insurance in particular. Threatening to sue people if they don’t get their numbers right is just another way to create pressure for racial quotas. Recommended reading on the topic can be found here and here.

Really, when you think about it, the way forward from identity politics is to stop race-based decision-making of any kind. We’re all Americans, E pluribus unum, and all that. And this means no more racial preferences or “disparate impact” civil-rights enforcement.

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