Disparate Impact vs Equal Protection

Justice is not a pendulum.

Several years ago I met Gail Heriot. She is likely California’s foremost legal mind when it comes to what racial discrimination laws should be vs what various institutions have gotten away with.

Ever since somewhere around 1998 when I finished reading Cloudsplitter by Russell Banks, the definitive biography of John Brown, I made it clear in my thinking that the moral clarity of ignoring race is paramount. The small irony was, that against that very principle, Americans needed to be convinced that today’s whitefolks were not special with regard to the purity of their anti-discrimination ethics. Banks’ book convinced me that few people of any stripe were as determined to make the African a full equal in every respect as those who ran the Underground Railroad.

Several years earlier, in 1991, I read Faces At The Bottom Of The Well, the landmark book by Derrick Bell. In it, he proposed the existence of a theoretical group of white American militiamen who would pledge to defend black Americans from racism to the death with force. This is essentially what most people believed that armed Black Panthers would do. Bell posed the theoretical question of whether or not black Americans would trust the nominal ‘White Citizens for Black Survival’. Bell concluded that he would not.

Yet examples from reality proved Bell to be a cynic. I only had to look to my own father’s service in the USMC (although not in combat) and the continuing stories of fraternity that integrated combat units do exactly that; trust armed fighters with their lives under deadly conditions. That, not only in Operation Desert Storm under Colin Powell, but in fact back to John Brown and the Underground Railroad more than a century prior. The lesson is clear.

Yet for the purposes of discrimination cases dealing with the particulars around Affirmative Action we have lived with a legal theory that justifies the presumption of racist intent when there is disproportional racial representation in our bourgeois education and employment institutions. This concept is ‘disparate impact’.

Ever since I did manpower planning at Xerox Systems Group, (1987) I recognized the logical hole in disparate impact, which is simply that black and white supply and demand do not match up under all conditions at all times. It didn’t take much doing for me to see that enormous social engineering forces would be required for that kind of equity across the board in the US. These are forces that many people expected to be engaged one way or another, and yet Americans knew clearly any number of examples when black America produced All American champions based purely on their individual ambition and skill. The compendium of these achievements are nothing more or less than the litany of Black History Month, or what it was at the time.

What we eventually witnessed in our regression from colorblind ethics to hard multiculturalism spilling over into projects for other pet minorities was an expectation of a hard racial reckoning. Rodney King and OJ Simpson provided the kindling and random sparks provided just enough heat as racial activists of all sorts stockpiled gasoline and oxygen.

Eventually the sort of flat accusation of America itself as fundamentally racist gained traction in the rhetoric of the likes of Ibram X Kendi and a host of others like Ta-Nahisi Coates whose angle of complaint, while not crying ‘Burn Baby Burn’ in the streets gave plenty people warmth and comfort from the same hearth of racial resentment and contempt. Needless to say, this spilled into the violence in the streets after the death of Minnesota’s own saint George Floyd that some called a racial reckoning.

The greater irony still is that those who bemoan the history of American slavery would call the violence of 2020 justified yet would completely discount the violence of the American Civil War. The irony reflects the same squishy and contradictory ethics of Bell’s rejection of white American militants and black American gun violence in the meanest streets of this country. Worse still, Americans accepted terms like ‘People of Color’ in express rejection of the equity of white Americans, using race with the tribal logic it has always inherently possessed. A whole class of Americans are convinced that, through the ideas propounded by Frankfort School Marxists, that the dialectic of racial oppression and victimhood is key to the deepest understanding of human history and the singular dynamic animating all power struggles on the planet. Naturally, ‘brown people’ the world over were dragged without their permission into this twisted racial narrative. If it hurt white Americans, so what? They deserved it, according to this evolving racial theory. A few years later we found it justifying a new brand of anti-semitism because obviously Palestinians and all Arabs are brown.

As long as there are activists who can cite the evidentiary standard of disparate impact, of unequal outcomes by groups, then the ‘systemic racism’ of every American institution is guaranteed to be perpetuated, because we are equal in principle, not in practices, everywhere all at once. So we have generated and sustained a species of racial trolls.

But what of the Constitution? What of the Bill of Rights and the various Titles of the Civil Rights Acts? In our bourgeois comforts, we are of course free to entertain any sort of political theories we please. Although it is coming to light that many among them are luxury beliefs, they do persist as consistently as racial stereotypes. While inclusion, diversity and equity are peppering our verbal word salads, few are willing to unweight the presumptions of disparate impacts, especially when it comes to straight, white men. Yet with the same spirit of militant equality that animated John Brown and Harriet Tubman, true American heroes, some clearly see the contradictions of fighting racial fire with fire. What has been called ‘social justice’ exists as an attempt to bury liberty and justice for all.

I’m not sure we know if any NFL quarterback is now or ever was queer, but we are well aware of which particular political philosophy would much prefer that she be a trans-man of color. We are familiar with the syllogism that explains institutional discrimination and regimes of privilege, all of which are legally anchored in affirmative action and diversity programs of the past 50 years. Current discrimination for the purposes of inclusion in justified response to prior discrimination for the purposes of exclusion.

The matter of intent is obviated by the legal concept of disparate impact. Disparate impact is in conflict with equal protection.

Forget supply. Forget demand. Forget ambition and skill. Just go by counting heads. Each head represents a group and the characteristic of that group going back to antiquity. Ignore militant defense that doesn’t toe the narrative line. Call every exception a privileged token. It’s rather sad that we are so inured to this immoral scam that Americans avoid terms like rigor, merit and discovery of racist intent beyond a reasonable doubt. I know that the federal standard is civil rather than criminal. That doesn’t change the fact that statistical disparities on outcomes is considered a prima facie case. Do we really want protected classes that require and perpetuate this double standard? How long? Not long.

My friend and colleague Gail Heriot has found something for me to sink my teeth into this morning. So my aim is to defer to her expertise and share it with you. Here is the background, and the package.

Ricci v DeStefano

In the fire department of New Haven, Connecticut—as in emergency-service agencies throughout the Nation—firefighters prize their promotion to and within the officer ranks. An agency’s officers command respect within the department and in the whole community; and, of course, added responsibilities command increased salary and benefits. Aware of the intense competition for promotions, New Haven, like many cities, relies on objective examinations to identify the best qualified candidates.

In 2003, 118 New Haven firefighters took examinations to qualify for promotion to the rank of lieutenant or captain. Promotion examinations in New Haven (or City) were infrequent, so the stakes were high. The results would determine which firefighters would be considered for promotions during the next two years, and the order in which they would be considered. Many firefighters studied for months, at considerable personal and financial cost.

When the examination results showed that white candidates had outperformed minority candidates, the mayor and other local politicians opened a public debate that turned rancorous. Some firefighters argued the tests should be discarded because the results showed the tests to be discriminatory. They threatened a discrimination lawsuit if the City made promotions based on the tests. Other firefighters said the exams were neutral and fair. And they, in turn, threatened a discrimination lawsuit if the City, relying on the statistical racial disparity, ignored the test results and denied promotions to the candidates who had performed well. In the end the City took the side of those who protested the test results. It threw out the examinations.

Sounds familiar? You already know the explanation. “The tests are racist. Anyone who defends the tests are racist.” Sure when all victims are racial victims, some victims are more equal than others, by race. Well that’s unconstitutional. The decision was reversed in 2009. Based on that, the Administration is claiming that the EEOC is violating the principles of Title VII. The Supreme Court may eventually decide properly, but Gail and I have been on the proper side of this for decades. We’re not alone.

Many of you may have been reading me for years. You know where I stand on multiculturalism. It has been simple to see the foul direction it has led us, but I think my argument bears repeating.

Ideological Tribe A
We believe that America is at its best when its mainstream is maintained without regard to race, creed, color, sexual preference, etc..

Ideological Tribe B
We believe that America is at its best when its mainstream is maintained with special regard to race, creed, color, sexual preference, etc.

Belonging to Tribe A is the natural consequence of accepting the first principles of the Declaration of Independence, the Bill of Rights and subsequent amendments. So defend the Constitution. Feel free to spread the memes.

Government subsidies available for minority owned box businesses.