Disparate-Impact Dogma

National Review ^ | 7 July 2009 | Thomas Sowell

[Bob017]

The recent Supreme Court decision in the New Haven firefighters’ case will be welcome news to those who reject the idea that a gross injustice is O.K. when those on the receiving end are white. But the reasoning behind the 5-to-4 decision is a painful reminder that the law is still tangled in a web of assumptions, evasions, and contradictions when it comes to racial issues.

Nor have these problems been clarified with the passage of time. On the contrary, the growing complexity and murkiness of civil-rights law over the years recalls the painful saying, “Oh, what a tangled web we weave when first we practice to deceive.”

The original Civil Rights Act of 1964 was very straightforward in forbidding discrimination. But even before that Act was passed, there were already people demanding more than equality of treatment. Some wanted equality of end results, some wanted restitution for past wrongs, and some just wanted as much as they could get.

Opponents of the Civil Rights Act said that it would lead to racial quotas and reverse discrimination. Advocates of the Act not only denied this, they wrote the language of the law in a way designed to explicitly prevent such things. But judges, over the years, have “interpreted” the Civil Rights Act to mean what its opponents said it would mean, rather than what its advocates put into the plain language of the legislation.

A key notion that has created unending mischief — from its introduction by the Supreme Court in 1971 to the current firefighters’ case — is that of “disparate impact.” Any employment requirement that one racial or ethnic group meets far more often than another group is said to have a disparate impact and is considered evidence of racial discrimination.

In other words, if group X doesn’t pass a test nearly as often as group Y, then there is something wrong with the test, according to this reasoning — or lack of reasoning. This implicitly assumes that there cannot be any great difference between the two groups in their skills, talents, or efforts.

That notion is the grand dogma of our time— an idea for which no evidence is asked or given, and an idea that no amount of contradictory evidence can change in the minds of the true believers, or in the rhetoric of ideologues and opportunists.

Trying to reconcile that dogma with the principle of equal treatment for all has led courts into feats of higher metaphysics that Medieval Scholastics would be proud of.

The dogma survives because it is politically useful, not because it has met any test of facts. Innumerable facts against it can be found around the world and down through history.

All sorts of groups in all sorts of countries have been demonstrably better than other groups at particular things — whether economic, intellectual, political, or military. This fact is so blatant that only people with great cleverness can manage to deny the obvious. That cleverness is what creates the tangled web of confusion that has plagued civil-rights cases for decades.

Does anybody seriously doubt that blacks usually play basketball better than whites? Does anybody seriously doubt that the leading cameras and lenses in world have long been produced by Germans and Japanese? Or that Jews have been over-represented among the top performers in various intellectual fields?

Many groups whose performances have greatly outstripped the performances of others in a particular field have often been in no position to discriminate, even when the disparities have been far greater than those between blacks and whites in the United States.

In a number of countries, powerless minorities have so outperformed the dominant majority that group preferences and quotas have been instituted to favor the majority group that has otherwise been unable to compete. This has happened in Malaysia, Sri Lanka, Nigeria, and Fiji, among other places. Before World War II, quotas to benefit the majority were common in a number of European universities, where Jewish students outperformed others.

It is not stupidity, but ideology and politics, which allow the disparate-impact dogma to create a tangled web of deception in even the highest levels of our legal system. The recent Supreme Court’s decision in the New Haven firefighters’ case was a rare example of sanity prevailing, even if only by a vote of 5 to 4.