Neetu Arnold of the National Association of Scholars has written an excellent Law & Liberty essay on one of the Supreme Court’s greatest blunders, namely, Griggs v. Duke Power.
She points out that the disparate-impact theory the Court accepted and wove into the 1964 Civil Rights Act has had the unfortunate and unintended consequence of pushing employers to demand college credentials. Once testing became a legal minefield, many employers chose to use college degrees as a screening mechanism. As a result, more and more of the labor market was closed off to people who don’t have the right educational credentials, even if they have the native ability to learn the work.
Arnold writes, “Griggs, specifically, chilled merit-based hiring by businesses. Because companies feared legal liability if any of their job-specific hiring tests produced disparities, they turned instead to the college degree as an imperfect signal for the requisite talent and skills. Colleges, after all, can use test scores to filter strong and weak candidates. As a result of this shift, Americans — regardless of interest or ability — now need a college degree to qualify for most well-paying jobs. ”
She is right that the Court would do the country a service if it were to overturn Griggs. But the same thing would be achieved if Congress were to amend the Civil Rights Act. I doubt that there are any disparate-impact cases moving through our court system since I think that employers gave up that fight long ago. If Congress weren’t in Democratic hands, however, it might be possible to rewrite the Civil Rights Act so as to stop promoting needless, costly credentialism in the labor markets.