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The Department of Education’s Obama-Era Initiative on Racial Disparities in School Discipline: Wrong for Students and Teachers, Wrong on the Law (Part 2)

The Obama Administration took the position that Title VI regulations issued in 1966 turned a statute that prohibits intentional discrimination only into one that presumptively prohibits actions that have a disparate impact based on race, color or national origin. If so, that's an extraordinary extension of the statute. Too extraordinary, given that everything or nearly everything has a disparate impact on some protected group.

A week or so ago, I posted on the final version of my article (with Alison Somin) entitled The Department of Education's Obama-Era Initiative on Racial Disparities in School Discipline: Wrong for Students and Teachers, Wrong on the Law.

As the title suggests, the article makes two arguments: (1) The Obama Administration's aggressive application of disparate impact theory to school discipline has been bad for students and teachers; and (2) The policy also goes beyond the scope of the federal government's authority.

The first post was intended to give the reader a taste of the policy arguments. Giving the reader a taste of the legal arguments may take two or three posts (starting with this one).

First, the Obama Department of Education did not even claim that Title VI itself imposes disparate impact liability. In Alexander v. Sandoval (2001), the Court made it clear it does not. It stated, "[I]t is similarly beyond dispute—and no party disagrees—that [Title VI] prohibits only intentional discrimination."

Instead, the Obama Department of Education's argument was based on a couple of Title VI regulations promulgated in 1966. It argued that these regulations impose a general rule against actions that have a disparate impact. My article responds that (1) If the Obama Department of Education was right about the proper interpretation of those regulations, then, by analogy to City of Boerne v. Flores, they were beyond the scope of the powers of the Executive Branch; and (2) As a matter of textual analysis, the Obama Department of Education is wrong about the proper interpretation of those regulations. They were not intended to impose general liability for disparate impact.

I'll get to all that. But in this post, I just want to make a preliminary point: Everything or nearly everything has a disparate impact on some protected group.

It's easiest to make the point with Title VII, since that provision of covers not just race, color, and sex, but also religion and national origin (and there are a lot religions and national origins):

It is no exaggeration to state that there is always some protected group that will do comparatively poorly with any particular job qualification. As a group, men are stronger than women, while women are generally more capable of fine handiwork. Chinese Americans and Korean Americans score higher on standardized math tests and other measures of mathematical ability than most other ethnic groups. Subcontinent Indian Americans are disproportionately more likely to have experience in motel management than Norwegian Americans, who are more likely have experience growing durum wheat. African Americans are [disproportionately represented] in many professional athletics . . . . Unitarians are more likely to have college degrees than Baptists.

Some of the disparities are surprising. Cambodian Americans are disproportionately likely to own or work for doughnut shops and hence are more likely to have experience in that industry when it is called for by an employer. The reasons behind other disparities may be more obvious: Non-Muslims are more likely than Muslims to have an interest in wine and hence develop qualifications necessary to get a job in the winemaking industry, because Muslims tend to be non-drinkers.

(Citations omitted.)

I used to offer a $10,000 check to the favorite charity of anyone who could specify a job qualification that actually had excluded some job candidates that would not have a disparate impact on some group. I have never had to pay a penny. Even right-handedness is substantially more common among ethnic groups that consider left-handedness something that children must be trained out of.

Title VI is a little tougher for my point, since it applies only to race, color, and national origin. Nevertheless, there are a lot of national origins out there, so if disparate impact liability were to apply to Title VI through its regulations, it would make an extraordinary range of decisions by funding recipients presumptively a violation:

For example, in the education context, a university that considers the Math SAT score of an applicant for admission gives Korean-Americans and Chinese-Americans an advantage while disadvantaging many other racial and national origin groups. A college that raises its tuition has a disparate impact on Cajun-Americans, Haitian-Americans, and Burmese-Americans, all groups that have below-average median household incomes.

Similarly, a high school that decides to invest in a basketball team rather than a baseball team has a disparate impact on Latinos, who, on average, are shorter than African-Americans and whites, given that height is an indicator of success for male youth basketball players. And if a "Little Beirut" neighborhood is further from a given high school campus than most neighborhoods, and that school decides to build a tennis court where part of the parking lot used to be, the loss of that parking may have a disparate impact on the Lebanese-American students who have to drive to school, as it would any community far from the school campus.

There is no end to it. A university that gives college credit to students who can pass a foreign language exam has a disparate impact on Irish-Americans, Scottish-Americans, and Anglo-Americans, since they are unlikely to have a language other than English spoken in the home. Even a teacher who decides to seat students in alphabetical order will have a disproportionate effect on Chinese-American students. Chinese surnames are more likely to start with W, X, Y, or Z, which would place such students disproportionately toward the back of the classroom.

(Citations omitted.)

Two arguments are often made as to why disparate impact liability isn't that terrible. With Title VII, the EEOC takes the position that it doesn't ban (or at least the agency won't take notice of) job qualifications where the protected group qualifies at a rate of at least 80% of the highest group's rate. Tiny disparate impacts don't count. Such a rule could be applied in the Title VI context too (where it would be just as arbitrary). The problem is that disparate impacts that fail the "80%" rule for some group are by no means rare. They are the rule, not the exception. Even with such a rule in place (and it was made up out of thin air) it will still be so that everything or nearly everything has a disparate impact. Since employers and recipients of federal funds never know who will be applying for a job or for admission, etc., it means they will always be treading on thin ice. Government agencies will thus always have the discretion to rule their actions out of bounds. That's an extraordinary level of discretion.

The second argument is that disparate impact liability only makes actions that have a disparate impact presumptively a violation. It is always possible to rebut the presumption by proving "necessity." But do we really want to live in a society in which the actions of recipients of federal funding under Title VI are always (or almost always) subject to a demand by a government agency that they be "justified" by necessity? That's extraordinary--especially for an underlying statute that prohibits only intentional discrimination.

I will write next time about why it's too extraordinary. Such a regulation would be beyond the scope of the Executive Branch's powers.

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  • Rev. Arthur L. Kirkland||

    I used to offer a $10,000 check to the favorite charity of anyone who could specify a job qualification that actually had excluded some job candidates that would not have a disparate impact on some group.

    Was that $10,000 part of the payoff for pretending not to be a Republican?

  • Michael Ejercito||

    You pretend to be smart-and you are not very good at it.

  • Rev. Arthur L. Kirkland||

    Conservatives -- especially the faux libertarians -- dislike my comments.

    I am content.

    Do you support the commission-packing project that put Prof. Heriot on the civil rights commission?

  • ThanksForTheFish||

    Actually, everyone that isn't you dislikes your comments.

  • Rev. Arthur L. Kirkland||

    Conservatives -- especially the faux libertarians -- dislike my comments.

    I am content.

    Do you support the commission-packing project that put Prof. Heriot on the civil rights commission?

  • MatthewSlyfield||

    The snarky insults are the only point he has every had on any issue.

  • loki13||

    In fairness, this might be the occasion for the snarky insult.

    Roughly the same as making a comment asking about Mary Rosh or missing hard drives when John Lott is around.

    I do think it's remarkable that someone lied in order to pack the civil rights commission- both because of, you know, the lying, and also because ... c'mon, why would you do that? It wasn't even subtle.

  • mad_kalak||

    If the worse his opponents can throw at Lott is that he engaged in sock-puppetry, especially when CDC surveys mirrored his own survey findings from the missing hard drive, well, they got one on us all. Oh, and his eyebrows. Can't forget his weird eyebrows.

    (This is not to say that what he did was right, but discounting him entirely due to those is step way to far).

  • loki13||

    I'm not saying it is either always appropriate, or that the sockpuppetry (and data ... destruction? lack of proof? weird story?) is the worst that he's done.

    It's just unsurprising when it comes up as a one-liner. Kinda like this. I would be surprised if someone didn't mention it in a post by Heriot.

  • mad_kalak||

    Fair enough, thanks.

  • David Nieporent||

    I would be surprised if someone didn't mention it in a post by Heriot.

    I would be surprised if you were surprised, since Troll Kirkland brings it up in everythread of hers. He makes the LiberalsShouldAllBeKilled guy (or whatever nom de plume the guy is using now) seem like Aristotle.

  • Rev. Arthur L. Kirkland||

    Unless Mr. Nieporent can identify Prof. Heriot's acknowledgement of and apology for her shabby, disingenuous, corrosive conduct, I consider his objections to be as silly as his claim to be a libertarian.

  • MatthewSlyfield||

    "In fairness, this might be the occasion for the snarky insult."

    No, I don't think that's a fair response regarding a commenter (AK) who never has anything to say that's not a snarky insult.

  • loki13||

    Well, out of curiosity, if he makes a snarky comment on every issue, and you make a snarky comment about his snarky comment .....

    Turtles, all the way down.

  • Rev. Arthur L. Kirkland||

    why would you do that?

    Lack of morals?

    To promote old-timey intolerance?

    Shabby partisanship?

    Ugly self-promotion?

  • mad_kalak||

    Coming from you Mr. Hihn, whew, that's rich.

  • perlchpr||

    I was pretty shocked when it came up with that. I didn't expect an irony subroutine.

  • mad_kalak||

    Damn, now that's funny. *bleep bloop*

  • mad_kalak||

    Hiln insults while complaining about insulting while simultaneously engaging in intellectual snobbery....and blithely assume that insults related to personal categories and group membership won't be insulting on a personal level (which is certainly a unique take I've never heard before).

  • mad_kalak||

    "The best defense is a good offense" philosophy doesn't work in all situations. But I've come to understand that the radical anti-authoritarian libertarian types are as autistic as the PC progressives in understanding that.

  • DjDiverDan||

    To have something other than snarky insults would require intelligence, a rational thought process, and some modicum of creativity. The Rev. is very short on at least two out of three.

  • Michael Ejercito||

    You got that right!

  • Rev. Arthur L. Kirkland||

    The Rev. is very short on at least two out of three.

    On which of the three do faux libertarians and other movement conservatives ascribe the benefit of a doubt?

  • Rev. Arthur L. Kirkland||

    The Rev. is very short on at least two out of three.

    On which of the three do faux libertarians and other movement conservatives ascribe the benefit of a doubt?

  • Lee Moore||

    Presumably, somewhere, there's a case in which it is explained how the concept of membership of a "protected group", and its necessary counterpart, non membership of a "protected group"; is squared with not denying "to any person within its jurisdiction the equal protection of the laws."

  • Brett Bellmore||

    That is clearly the sort of concern only a NAZI would have. [/sarc]

  • loki13||

    No one can explain that to you, because (a) that's not what is going on,* and (b) you don't want to understand.**

    First, all laws, in some way, discriminate. On the basis of status, wealth, conduct, whatever. That is what laws do. Laws against murder discriminate against people who like to kill people. Laws about licensing drivers discriminate against the very young, the blind, and so on. For the most part, we accept that laws are allowed to discriminate because that is what laws do. In some cases, we look at laws more carefully because we are concerned about certain types of invidious discrimination- say, race. This can be either a constitutional issue (14th Am.) or a statutory one (say, Title VII).

    contd.

    *You can't define your way to winning. Not that you "win" an argument on the internet.
    **You have to at least understand the concepts before you reasonably disagree with them. At least, that's how it used to work.

  • loki13||

    So it's not a question (like you are trying to phrase it) of protected v. non-protected group; instead, the issue would be a suspect class (say, race) in which any discrimination by the law would be viewed disfavorably. This would apply to any race, not "protected" or "non-protected;" to the extent that there are more claims (both statutory and constitutional) by certain groups, it is likely because certain groups are more likely to be discriminated against,* but claims by white people, men, and Christians are advanced (and win) in the courts.

    All of this is pretty basic stuff. Where it gets (even IMO) more controversial is when you get to disparate impact. Which I will briefly address in the next post. But I will preview it by saying that the OP is absolutely terrible and has done a miserable job of addressing any of the issues in a manner that would persuade those who are undecided.

    *And, of course, those who are able to discriminate are more likely to be part of certain groups.

  • loki13||

    So if you look at the genesis of disparate impact (Griggs), it makes sense. Really. Duke Power (in North and South Carolina) was a pretty racist company. They had a rule that blacks could only work at the lowest paying jobs in the company. They then made sure (this was during the segregation era) that whites would be assured of getting the better jobs by having a high school diploma requirement- while this doesn't seem like much today, it was a big deal then for physical labor jobs (like janitors for the maintenance department) in an area where there was a huge difference in schooling for whites and blacks. AND THEN after the passage of the CRA, Duke Power added an additional intelligence test for these manual labor positions.

    In other words, Duke Power had ceased to say, "Whites Only," but had designed specific barriers to black employment with no business necessity that had a disparate impact on black people. Something which was quite obvious when the Supreme Court heard the case in 1970.

    Again, there is room for reasonable discussion about the standards for disparate impact & business necessity, about its continuing validity, about Ward's Cove (look it up) and Ricci, and about the differences between disparate impact and quotas- if any (and why that is a problem). But you'd never understand any of this, even to be able to argue against it, from the OP. For once, I actually agree with Kirkland- she's a lying shill, and she makes the VC worse for her presence.

  • Lee Moore||

    loki : No one can explain that to you, because (a) that's not what is going on,* and (b) you don't want to understand.**
    loki : For once, I actually agree with Kirkland- she's a lying shill, and she makes the VC worse for her presence.

    Michael Hihn : Thanks. Thoughtful is always better than screeching

    Bxstxxd ! Made me spill my coffee.

    I can't top that.

  • mad_kalak||

    I have to say, that is a pretty rousing stump speech for critical legal realism. Pointing out that the law prevents the rich from sleeping under bridges as well as the poor is well trod territory though.

    I agree in principal though, and I don't have the legal language to represent this I admit up front, but some forms of disparate impact are more important to Democrats than other forms.

    Hierarchies don't always form because of racism and insider status, they often form based on competence. Whether Duke Power was racist or not, the unintended consequence of the Duke Power decision has been that employers use a college degree as a proxy (and a bad one at that) for aptitude tests, which has generated a whole host of other problems.

  • loki13||

    "I have to say, that is a pretty rousing stump speech for critical legal realism."

    Not really. Although this point seems to keep getting elided by the OP in favor of, "Derp, everything is disparate impact," this is actually in the statute. Yes, it has a textual basis. See, e.g., 42 U.S.C. 200e-2(k) (burden of proof in disparate impact cases).

    It's also delineated in the text of, inter alia, Title VII, what the classes are (race, color, religion, sex, national origin).

    The argument being advanced, which isn't necessarily wrong, is that expansion of disparate impact theory into other areas without a clear textual hook is improper. I can understand that. But the OP repeatedly conflates that concept with disparate impact in general.

    "Whether Duke Power was racist or not,"

    That's not really debatable. FWIW, the evidence produced that the Supreme Court elided was that whites gave each other answers to the IQ tests. It was always going to be rigged against blacks.

    "the unintended consequence of the Duke Power decision has been that employers use a college degree as a proxy (and a bad one at that) for aptitude tests,"

    Yeah, no. That is roughly like saying that the primary cause of the Civil War was the difference in accents.

  • mad_kalak||

    I have to admit, that I've never read before that the test answers were shared between whites in the Duke case. If that was true, it makes the decision have more grounding in at least one version of reality.

    But I think you're being blissfully unaware of the unintended consequences of the Duke case. And your analogy makes no sense, I'm not seeing the comparison. After Duke, only very specific aptitude tests can be given specifically related to the task at hand, and only if the company is willing to deal with potential litigation, which means they usually don't. Something like the military's ASVAB cannot be given out to prospective employees. You generally only get tests on physical requirements, and only the government uses aptitude tests. So employers use a college degree as a proxy for intelligence, which they are not. College degrees are a signal for your ability to minimally follow directions and take at least some degree of initiative. And the aptitude tests just get pushed back one level, as in they determine what college you get into, rather than what type of job you could get.

  • loki13||

    So, to go into one of my favorite issues (really).

    "Aptitude tests," (such as, inter alia, the Wonderlic) have never been a good measure of job performance. While there was always a strong interest in the United States, especially after WW1 (see industrial psychology), the use of aptitude tests as anything more than a basic screening device oversells their utility. Basically, you end up with divergent areas in the US- where either a job most definitely wouldn't require it (think retail, for example), or testing is commonly used, often for promotion purposes (think of first responders).

    Of course, none of this is to say that even in other fields, you can't have a basic screen. It is common for large retail stores to make applicants go through a personality test (really, a "how honest/stupid are you?" test) for Loss Prevention purposes that is considered in conjunction with the remainder of the application.

    ...contd.

  • loki13||

    The reason for my comment is that you are conflating the "college credential" with Griggs. Turn this around a different way-

    If a much larger percentage of the workforce has four-year degrees, then this becomes the new normal. You can demand it (and also receive "proof" of ability in terms of the name of the school and/or GPA, and, at a minimum, the knowledge that the applicant "stuck with it" for four years) knowing that you will likely still have a large number of applicants. Assuming a white collar job or the like, it is easily justified as well. But this isn't from Griggs- this is completely unrelated to it, and related to the other changes in society (including, but not limited to, the disparate monetary outcomes for college degrees, government subsidies for education, and, of course, cultural changes that extended the amount of time people are considered ... um ... kids).

  • loki13||

    Now, all of that said, I would agree that promotional exams tend to be a fertile area for disparate impact litigation (Ricci is one of MANY examples) because it is a common policy, and because it will likely result in a disparate impact. And that is an area where I am concerned about the whole disparate impact / quote issue (see also 42 USC 200e-2(l), prohibiting employers from adjusting results of any tests, including cutoff scores).

    Which is why it would be great if we had someone posting about these issues who would discuss them in a way that makes people think, instead of what we are getting. It's not all ... um ... black & white.

  • mad_kalak||

    Okay, I admit I made the Duke case and the corresponding lack of aptitude tests and the use by employers of a college degree as a proxy for intelligence seem uni-factorial, when it's multi-factorial. There are a lot of factors for why a college degree is expected for a middle class job now, though the lack of employers willing to give aptitude tests is a big one, perhaps bigger than you'd care to admit.

    But you seem to be missing that the "college->good career" is self-perpetuating because of a distinct lack of alternatives for employers to know how good a potential employee is, i.e. aptitude tests. And you are radically underselling their use as a basic screening when you have college grads that can barely read and write. Some entrepreneurs are going the route of trying to get colleges and educators to give less than certificates for certain levels of training, but that hasn't caught on. Neither has an apprenticeship system.

  • loki13||

    "But you seem to be missing that the "college->good career" is self-perpetuating because of a distinct lack of alternatives for employers to know how good a potential employee is, i.e. aptitude tests. "

    I didn't miss that at all; pretty sure I just explained that.

    Now, there is a different issue if you are arguing that this is good, or bad, or just the new normal. At a certain point, a college degree today is roughly equivalent to a high school degree in the past; and there are certainly "apprentice-like" educational programs for some professions (fire fighter, for example, in some places, or IBEW often has good ones for electricians ... if you can get into it ... and so on).

    More often than not, this is a weird point I see hammered on by people that are really old, and aren't quite sure what to make of it all. Not saying you're old, but ... well, you know. There was never some "golden age" of jobs.

  • mad_kalak||

    "I didn't miss that at all; pretty sure I just explained that."

    No, not really, you adequately explained the current situation, not how we got here, and you're making the mistake in thinking that the reason college degrees are equal to high school degrees two generations ago is some natural outgrowth of market forces. It's not, at least not fully, because the product does not equal market demand without the distortion of the government interference with the market of alternate signals of human capital. There are four pieces of evidence for this.

    1) Most jobs that require a college degree to even get a interview for don't actually require a college education.
    2) The growth of college degrees has not been in STEM or technical fields like accounting, where college training (may be) necessary, but liberal arts degrees, the kind that signal "I'm smart enough to get through college" but nothing else. No employer cares that you studied Socratic philosophy or underwater basketweaving.
    3) A sizable percent of college grads never improve their critical thinking or writing abilities after 4 years.
    4) There is a surplus of college grads compared to the actual number of jobs available year after year, and the market never corrects for this, ever.

    Cont...

  • mad_kalak||

    You also have no explanation why are the only employers of any size that use aptitude tests government agencies, which don't fear lawsuits like a private employer? Moreover, the market is all over aptitude tests just one level back from employment, they are the the LSAT, SAT, ACT, GRE, MCAT, etc. etc.; yet we never see those tests in the employment market place except for government jobs, like the military.

    Imagine an alternate world where Duke and Griggs never happened, and a prospective employer could give someone an ACT and the employer sees their aptitude and slots them as an HR generalist. Instead we have an 18-year-old taking the ACT, getting a useless degree in Sociology, then applying for a job as an HR generalist with the degree taking the place of the employer ACT.

  • Lee Moore||

    "Aptitude tests," (such as, inter alia, the Wonderlic) have never been a good measure of job performance.

    As usual, it depends on what you mean by "good." IQ tests (which is what Wonderlic is really doing in a disguised and slightly diluted form) are not a measure of job performance (obviously) they are a predictor of job performance. But they aren't, and don't pretend to be, very reliable predictors. For jobs requiring a reasonable amount of cognitive ability, IQ doesn't predict more than about 25% of the difference in performance. There are other influences - though we don't know how to measure them in advance with anything like the reliablity of IQ.

    But IQ tests don't need to be very reliable to give employers substantal advantages. If you can boost the number of middle managers who are going to succeed from say 25% to 33%, by promoting people with higher IQ scores, you are going to add a lot to your bottom line. Sure it would be nice if there was a predictor that could get you from 25% to 75%, but there isn't.

  • Michael Ejercito||

    The evidence did not convince SCOTUS; otherwise they could have simply found thst the test was being administered in a racially discriminatory manner.

  • loki13||

    "The evidence did not convince SCOTUS; otherwise they could have simply found thst the test was being administered in a racially discriminatory manner."

    That's not what happened. You really have to understand the time and the place- this is ur-law when it comes to Title VII and disparate impact, when they were still:
    a) Trying to understand how to implement the text, and
    b) Real blatant racism was darn easy to find.

  • Rev. Arthur L. Kirkland||

    For once, I actually agree with Kirkland- she's a lying shill, and she makes the VC worse for her presence.

    Your final clause is sketchy. I believe she fits snugly.

  • Rev. Arthur L. Kirkland||

    For once, I actually agree with Kirkland- she's a lying shill, and she makes the VC worse for her presence.

    Your final clause is sketchy. I believe she fits snugly.

  • Brett Bellmore||

    No, that actually IS what is going on. Not nominally, but actually. It was, for instance, explicit policy during the previous administration that cases of racial discrimination against whites would not be prosecuted by the Justice Department.

    For instance, the DOJ dismissed the racial intimidation case against the New Black Panthers after winning the case, because the victims were white, not black.

  • loki13||

    "No, that actually IS what is going on. Not nominally, but actually. It was, for instance, explicit policy during the previous administration that cases of racial discrimination against whites would not be prosecuted by the Justice Department.

    For instance, the DOJ dismissed the racial intimidation case against the New Black Panthers after winning the case, because the victims were white, not black."

    Blah blah blah whatabout THIS SQUIRREL!

    Allow me to quote myself-

    *You can't define your way to winning. Not that you "win" an argument on the internet.
    **You have to at least understand the concepts before you reasonably disagree with them. At least, that's how it used to work.

    Bye Felicia- why don't you go chase a ball in traffic? I hear that's where the REAL birth certificate is.

  • WJack||

    Demonstrating once again that those who are victims of progressive educators seem compelled to compose elaborate non-sequitur based arguments and become angry when someone points out the obvious.

  • apedad||

    Victims of progressive educators?

    Ah yes, the poor white man... (sheds a tear)...

  • Rev. Arthur L. Kirkland||

    victims of progressive educators

    WJack appears to be bemoaning all of these damned Harvard, Yale, Columbia, Reed, Princeton, Michigan, New York University, Berkeley, and Williams degrees, and urging an increase in the number of Wheaton, Hillsdale, Ave Maria, Franciscan, Regent, Oral Roberts, Liberty, Patrick Henry, and Grove City graduates.

    To improve the quality of reasoned debate, of course.

    Carry on clingers. So far as your fourth-rate, censorship-shackled, nonsense-teaching, snowflake-coddling "schools" could carry anyone, that is.

  • Brett Bellmore||

    You don't win arguments by declaring evidence to be nut eating rodents, either.

  • loki13||

    "You don't win arguments by declaring evidence to be nut eating rodents, either."

    You didn't come up with any evidence. There was no "explicit policy," and reciting your tired Obama-era points is orthagonal to what I wrote.

    But sure, pat yourself on the back because you realized, again, that the real problem in America was just how racist Obama was to white people.

  • loki13||

    "LAME. Your use of "squirrel" is easily visible. And THAT is what you quoted. Then veer to a diifferent topic o the next sentence,"

    ?

    Brett- " It was, for instance, explicit policy during the previous administration that cases of racial discrimination against whites would not be prosecuted by the Justice Department."

    Me- "You didn't come up with any evidence. There was no "explicit policy," and reciting your tired Obama-era points is orthagonal to what I wrote."

    And yes, I made a typo on orthogonal. I meant exactly what I said. A no-evidence post about Obama has nothing do to with what I wrote.

    Bye!

  • Brett Bellmore||

    Proof: New Records Show DOJ Lied About New Black Panther Dismissal

    Or U.S. Civil Rights Commission hearing erupts in shouting

    "I was told by Voting Section management that cases are not going to be brought against black defendants for the benefit of white victims, that if somebody wanted to bring these cases it was up to the U.S. attorney, but the Civil Rights Division wasn't going to be bringing it," Adams testified in July.

  • loki13||

    So to start with, there was no "explicit policy" in the Justice Department. Instead, you are referring to what you believe to be an "implicit policy" within a particular division (Voting Rights) of a particular division (Civil Rights) of the Justice Department.

    So by "proof," you mean a single discredited statement by a conservative activist?* Here, let me help you by quoting from further in the article:

    But others, including Republican member Abigail Thernstrom, who has sided with Democrats through much of the controversy, said it was ludicrous to believe that Fernandes had ordered attorneys not to pursue voting cases with white victims, saying anyone who would say that would be "a moron."

    Are you trying to tell us something, Brett? It's a very roundabout way of doing it.

    *It is appreciated that noted INDEPENDENT Gail Heriot makes an appearance in that article. :)

  • Brett Bellmore||

    No, by the testimony, it was an explicit policy internally, but denied publicly.

  • loki13||

    "No, by the testimony, it was an explicit policy internally, but denied publicly."

    Again, there was a full investigation after the hearing that does not agree with you. And even this testimony (BY A CONSERVATIVE ACTIVIST) does not state that it was an explicit policy.

    I get you like to hold on to your fables, but:
    1. It's partisan BS; and
    2. EVEN IF IT WASN'T, it has nothing to do with what I was discussing. Notice how there wasn't a single political point? Not one?

    KTHXBYE!

  • Rossami||

    Loki13 started with a reasonably articulate statement of position. Unfortunately, these later posts mostly just prove his own point that "You have to at least understand the concepts before you reasonably disagree with them." Loki, this hair splitting and ad hominem attacks are exactly what you are accusing the worst of your opponents of doing. You called for evidence and then when it was offered, attempted to find ever more tenuous ways to discredit it rather than to understand the underlying concepts.

    Let me attempt to simplify the concepts for you.
    1. Discrimination is normal.
    2. Discrimination for impermissible purposes is bad and is generally forbidden by the Equal Protection Clause.
    3. Discrimination on the basis of race is specifically one of those impermissible purposes.
    Asserted (in Lee Moore's original post above) that discrimination in favor of a racial group is nevertheless incompatible the premise that discrimination on the basis of race is (or should be) impermissible.

  • loki13||

    " Unfortunately, these later posts mostly just prove his own point that "You have to at least understand the concepts before you reasonably disagree with them.""

    Why should I have to bother rebutting, again, a stupid factual issue that has nothing to do with what I was discussing? Really?

    Here- this is the report that Brett (and, assumedly, you) have never read-

    https://oig.justice.gov/reports/2013/s1303.pdf

    That is how the sausage gets made. No one is an angel in that case. And there's a lot of "not good" to go around (including the decision to bypass normal channels and file the complaint before the new administration had a chance to review). But it is now 2018. WHY AM I FORCED TO REBUT A STUPID ARGUMENT THAT HAS NOTHING TO DO WITH MY POINT AND IS FACTUALLY INCORRECT FROM EIGHT YEARS AGO?

    This is why the VC sucks now.

  • NToJ||

    Which disparate impact claim by a white victim did the DOJ ignore?

  • KevinP||

    Leftists and progressives are so concerned about racism because it thrives the most in their own midst:

    Bernie Sanders' Own Black Press Secretary Was Profiled and Stereotyped By His Staff, Event Hosts


    Quote:
    There were multiple instances. There were places where I literally I couldn't get in. I would go to the door, the staff entrance, and people would say, "This is staff only." I'd have to explain to them that I was staff, and they would question me. I would have to say, "I'm the national press secretary. Did you watch me on the news the other day?"
  • Sarcastr0||

    A great cautionary tail. However, 'the most' is completely unsupported there.

  • Smooth Like a Rhapsody||

    Do all good watch dogs have cautionary tails?

  • Sarcastr0||

    Once I saw what I wrote, I knew someone would be around to pick that up.

  • Lee Moore||

    Having reflected further, I am inclined to agree with loki that "protected group" is not an apt characterisation of the text of a law forbidding discrimination on the grounds of race, sex etc.

    "the equal protection of the laws" posits, I think, the whole body of law that protects persons. Not all law is protective of course. The same law that "protects" Mr X from discrimination in his dealings as a consumer, tenant, employee or student also restricts his freedom to discriminate in his dealings as a supplier, landlord, employer or educator.

    If Mr X, for whatever reason, happens to be the sort of person against whom people often discriminate, while Ms Y never seems to suffer that kind of trouble, then the fact that the law in practice protects Mr X more often than Ms Y, doesn't mean that the law is affording them unequal protection. They both have formal protection from the same ills, and if Ms Y happens not to need it, c'est la vie.

  • Lee Moore||

    So - before we get on to disparate impact, which I think I'll save for another day - the question of whether such an anti-discrimination law creates "protected groups" is not down the the law on its face. It there are protected groups it's because of how they are applied.

    Thus for example, if the law prohibits employers from discriminating against employees on grounds of race, but not against employess on grounds of poor work, failure to follow instructions, poor timekeeping, disrespect to other employees or customers, and any of the other scores of things that might make an employer wish to be rid of an employee ; then if Mr X (who is, say, black) is likely to win in court on a racial discrimination claim when he is in fact fired for disrespect, but Ms Y (who is, say, Japanese) is unlikely to win in court in equivalent circumstances, then we would be in danger of having laws that protect some people more than others, whatever it says on paper.

  • Lee Moore||

    OK, disparate impact. Suppose there is - we'll stipulate - a feeling among employers that black people have a greater tendency to be disrespectful to their employers than people in general - such that if an employer fires employees for disrespectful behavior, Mr X, a black employee, who is fired for disrespect can successfully claim that the employer's policy has a disparate impact on black folk. Mr X wins some damages. But when Ms Y (Japanese) is fired for disrespect, she cannot bring the same claim successfully. No damages.

    Here I'm struggling to see how Mr X and Ms Y, each of whom has been fired for disrespect, one of whom has won damages in the courts, and one of whom has not, can be said to enjoy "the equal protection of the laws."

    It looks like the concept of disparate impact is slotting us directly into the position I described above. While the law on its face offers equal protection, the law as applied does not.

  • loki13||

    Lee-

    I think what you are missing in your final post is the difference between disparate impact and disparate treatment.

    For your "disrespectful" example, I can't see how that would be brought as a disparate impact claim- do you? Because that would be an individualistic determination- disparate treatment. And so the issue would be whether or not the person was fired because they were, say, insubordinate, or if that was a pretext (important word, there) for the actual cause- discrimination based on race (whether it's black, or Asian, or whatever).

    Disparate impact requires that common policy and procedure that affects groups differently. In addition, "disrespect" (or, as it would be actually be called, workplace insubordination) is perfectly legitimate ground for disciplining and/or terminating individuals. It would be the same with a no-call/no-show policy, regardless of whether or not, at a given work place, it had a greater impact on some people than others.

  • Lee Moore||

    I don't believe I am confusing the two disparates. I was postulating that an employer had fired two employees for disrespect entirely genuinely and that one employee had a claim (but the other did not) because the genuine ground for dismissal was - I stipulated - a ground more likely to affect employees who were of a particular race. (There are all sorts of disrespects that don't amount to insubordination btw.)

    But perhaps it wasn't the best illustration. Let's take the more familiar "strength test" which might be alleged to have a disparate impact on men and women. Let us postulate two job applicants both of whom score 57 on the employers strength test, for which the employer has specified 75 as the necessary minimum. Neither is hired. One is female the other male. As I understand it - and feel free to correct me, if the woman takes the employer to court claiming that the strength test has a disparate impact (adversely to women), the employer has to show that the strength test is objectively justified to such and such a standard of proof. If the employer fails to leap these hurdles, the woman wins.

    But my understanding - again feel free to correct me - is that if the man went to court, he would not be able to make the employer leap the same hurdles to demonstrate the justification for the test.

    Unless the man can also win by demonstrating that the rule has a disparate impact on women, that looks a bit like one rule for Jack and a different rule for Jill.

  • apedad||

    So we've had two or of three articles on the subject and not an ounce of legal review or legal commentary or legal academic insight.

    Just lame platitudes.

    Or are my expectations too high?

  • loki13||

    "Or are my expectations too high?"

    I was so excited to see that they added someone who would discuss employment law. Little did I know that her posts would make me think, "Dang, that Jim Lindgren had some great points about the upcoming forced work camps!"

    She has done a terrible job of explaining basic concepts to the audience; at best, it's red meat to the already-converted. I would comment more, but I've pretty much given up on the VC at this point. I'm going the way of Mark Field and others- I just can't take the cesspool of Obama and Hillary comments. I know most of these people must be old, but c'mon, don't you realize you elected someone else? Are things so bad that you have to spend all your time complaining about people that aren't even around anymore (and yes, that is a question that answers itself).

  • loki13||

    Chill the eff out, dude. You clearly don't understand much, if anything. But allow me to type this slowly for you-

    1. No, she doesn't explain the law very clearly. I understand this because she is dealing with an area of the law I happen to understand very well. She is working as a political advocate, which is fine, but her bias is so severe that it does nothing more than convince those who already agree with her. Which is way too common.

    2. My comment about the comments has nothing do with the OP, but about why I rarely comment on the VC anymore. Try reading it again and figuring it out.

  • Stephen Lathrop||

    Jeez, Mark Field. I miss that guy. Wouldn't mind more from you, either, Loki.

  • loki13||

    I can't. The comments have gotten way too stupid. Signal < noise.

  • apedad||

    Um, what conclusions?

  • Eddy||

    I see there's a lot of discussion here.

    Let me suggest a topic: Should the federal government apply disparate-impact analysis to school discipline? And if so, how?

  • Eddy||

    Just for the sake of argument, let's start by stipulating that Republicans suck, and Democrats are virtuous (except Gail Heriot). So, given these premises, what is the best public policy to adopt regarding school discipline and alleged disparities in discipline?

  • loki13||

    " Should the federal government apply disparate-impact analysis to school discipline? And if so, how?"

    So, let's start with some basics. When you say "school discipline" I assume you mean K-8 or K-12. Not college or post-graduate.

    As a general matter of policy and principle, the federal government should not be heavily involved in the K-12 education; while providing financial assistance and guidelines is definitely acceptable, and I can't argue with some standardization across state lines (if you're a parent, and you've moved between states, you know what I mean), education is, to me, very much a local thing.

    But what do you mean by "apply?" Should they bring lawsuits based on it? No. Both because of ... the law ... and because it doesn't work in that setting. Should they look at it in terms of analysis? Yeah, why not? It provides insight and it could be beneficial to state and local decision-makers.

  • Eddy||

    OK, let's put it this way:

    Should current federal policies be changed, and if so how?

  • Eddy||

    "Should they bring lawsuits based on it? No."

    Would that include administrative proceedings to revoke federal funding?

  • JimT-Utah||

    "The problem is that disparate impacts that fail the "80%" rule for some group are by no means rare. They are the rule, not the exception. Even with such a rule in place (and it was made up out of thin air) it will still be so that everything or nearly everything has a disparate impact."

    If I were suddenly called upon to justify the 80% figure, I would answer, "The 80th percentile of any normally-distributed population is roughly 1 standard deviation (sigma) above the midpoint." Folks who like to play with statistics like things that can be related to an integral multiple of sigma. The midpoint is obviously too low a cutoff point, and cutting off at 2 sigma makes the victim class too small. The air may be thin up there, but it's a long way from a vacuum.

  • Brett Bellmore||

    Now, wait; One sigma out is only, what? 95%? We really want one instance in 20 to be a false positive for discrimination? That might just swamp all the real (intentional) discrimination!

    Disparate impact is ok for a screening test, where finding it just leads to further investigation. The problem is when the "further investigation" proceeds with a presumption of guilt, and is sufficiently intrusive to make the process the punishment.

    And if you have goals that result in punishment if not met, (The only way to not get intrusively investigated is to not have disparate impact.) what you've actually got are quotas. People are going to be pressured to invidiously discriminate in order to avoid being accused of discriminating.

    THAT is the problem here. Actual discrimination to achieve numbers that will avert accusations of discrimination. That's what you get if disparate impact is taken seriously as evidence of discrimination.

  • ||

    A third reason to support disparate impact rules for federal funding: The more difficult it is to access federal funding, the better.

  • jdgalt1||

    Why don't the courts just invalidate the doctrine of "disparate impact" directly, everywhere it appears in law or policy? The Constitution certainly doesn't make an exception for remedying it even if it existed, so it shouldn't be necessary even to make the case that it doesn't.

  • Sarcastr0||

    It's almost as though the argument here isn't legal at all...

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