The temptation will be to lower standards in order to enlarge the pool of minority applicants. What could possibly go wrong?
Hans Bader and Dan McLaughlin have written about two concerning aspects of the George Floyd Justice in Policing Act. First, that a disparate impact by race or sex in traffic stops is considered prima facie evidence of racial profiling. Second, that because disparate impact alone is enough to get a police department in trouble, the police will have an incentive either to stop Asian and female motorists who are not speeding, or not to stop black and male motorists who are speeding, all in an effort to “get their numbers right.”
Readers won’t be surprised to learn that this isn’t the only ill-considered provision in the bill. Two additional troublesome provisions are connected: taxpayer-funded giveaways to ethnic-advocacy organizations and the imposition of racial preferences in hiring police officers.
Sections 111–114 are taxpayer-funded giveaways to wealthy progressive organizations such as the NAACP, the ACLU, UnidosUS (formerly La Raza), the National Urban League, the National Congress of American Indians, and the National Asian Pacific American Legal Consortium. These “community-based organizations” will receive grants from the attorney general to study various law-enforcement topics, including racial profiling, residency requirements, compensation and benefits, youth justice, hiring and recruitment, etc.
These studies are supposed to result in pilot programs that will fulfill accreditation standards (because the legislation will also require police departments to be accredited by certain law-enforcement organizations). The pilot programs will train police departments to meet accreditation standards in the areas of: “investigation of officer misconduct and practices and procedures for referring to prosecuting authorities allegations of officer use of excessive force or racial profiling; disproportionate contact by law enforcement with minority communities . . . community relations and bias awareness,” among other things. The pilot programs will also develop “policies, procedures, and practices for the hiring and recruitment of diverse law enforcement officers who are representative of the communities they serve;” and “the development of selection, promotion, educational, background, and psychological standards that comport with Title VII of the Civil Rights Act of 1964.”
In plain English: The attorney general will almost exclusively give money to community organizations that purport to represent the interests of discrete ethnic groups. Police departments will have an incentive to contract with these organizations for “training” and to revise their hiring practices, or else they won’t be accredited and won’t be able to receive federal funds (Section 113(c): “The Attorney General shall, as appropriate and consistent with applicable law, allocate Department of Justice discretionary funding only to States or units of local government that require law enforcement agencies of that State or local government to gain and maintain accreditation from certified law enforcement accreditation organizations in accordance with this section.”). Furthermore, law-enforcement agencies that receive grants under the Omnibus Crime Control and Safe Streets Act of 1968 will now be required to use no less than 5 percent of the grant to study various things to “promote effective community and problem-solving strategies for law enforcement agencies.” Obviously, police departments will have an incentive to simply use that grant money to contract with the NAACP or some other organization, rather than trying to reinvent the wheel.
There shouldn’t be any racial discrimination in hiring of police officers, just as there shouldn’t be racial discrimination in any other area of hiring. But police departments already bend over backwards to try to hire minority (particularly black) and female officers. This is nothing more than a quota. Given black males’ disproportionate involvement in crime, there’s a smaller pool of black candidates because a proportionately greater number are disqualified by criminal records. Black males also are less likely to graduate from high school than men of other races. In states with large numbers of illegal immigrants — such as California, Texas, and Arizona — the number of qualified Hispanic applicants may for that reason be disproportionately smaller than the Hispanic population as a whole.
If a police department doesn’t have officers who “look like” the community because of a lack of qualified applicants, that doesn’t mean the department has engaged in discrimination. The Supreme Court held in Hazelwood that “a proper comparison was between the racial composition of Hazelwood’s teaching staff and the racial composition of the qualified public school teacher population in the relevant labor market.” Hazelwood v. U.S., 433 U.S. at 308 (emphasis added).
The Court reiterated this holding in Wygant v. Jackson. In Wygant, the school board argued that it was justified in discriminating against white teachers because of the need for minority role models for minority students, and to remedy the effects of societal discrimination. The Court explicitly rejected these arguments. The Court flatly stated that past societal discrimination cannot be the basis for racial classifications in hiring today. In order to justify a racial classification in hiring, there must be a showing of past racial discrimination by the governmental unit in question. Given that government employers have been prohibited from engaging in racial discrimination since 1972, this would be enormously difficult to prove. The Court also firmly rejected the “role model” theory for racial preferences in hiring, stating, “The role model theory employed by the District Court has no logical stopping point. The role model theory allows the Board to engage in discriminatory hiring and layoff practices long past the point required by any legitimate remedial purpose.” Wygant v. Jackson, 476 U.S. at 275.
So in general, a non-diverse police department is not inherently evidence of discrimination, absent further proof. Yet this bill requires these pilot programs to hire more “diverse” police officers. What to do? Well, it’s pretty obvious. The temptation will be to lower standards in order to enlarge the pool of minority applicants. This is driven home by the requirement that to hire more diverse officers, these programs must “develop[] . . . selection, promotion, educational, background, and psychological standards that comport with Title VII of the Civil Rights Act of 1964.”
Now, if police departments haven’t developed procedures that prohibit disparate treatment by now, we’re in real trouble. But that isn’t what the bill means. These programs must develop criteria that reduce the disparate impact of a facially race-neutral standard. For example, if applicants need to have a B average in certain courses in order to be accepted — and that has a disproportionately negative effect on black applicants — then lower the requirement to a C average. If Hispanic applicants are disproportionately affected by citizenship requirements, make DACA recipients eligible.
Simple. What could possibly go wrong?