Proposed Executive Order Would Rein in Disparate Impact Theory

When the civil rights movement started, it was about simple justice - affording remedies where discrimination could be proven with real evidence in individual cases.  I handled such a case when I was a trial attorney - a black man was fired from a beer distributor and replaced with a white man who had previously worked there, and whose personnel file was marked ‘Do Not Rehire’.  We found the proverbial smoking gun and got our client a nice settlement.

Unfortunately, civil rights moved on from there and the theories became more and more outlandish and poisonous.  First came affirmative action - more discrimination to remedy previous discrimination, as in turning away Asian students from Harvard even though they are more qualified than the students of other races who are admitted.  Then came structural racism - forget evidence of discriminatory intent in individual cases; we’ll just indict the whole society for being no darned good, without any evidence at all.  And I’ve mentioned before Social Engineer-in-Chief former Justice Anthony Kennedy with his theories of unconscious bias which have been thoroughly debunked. 

So I was glad to see that the Trump administration is considering an executive order to cut back on another overreaching civil rights theory - disparate impact, a heavy-handed approach aggressively pushed by the Obama administration.  Disparate impact seeks to change outcomes in housing, hiring, consumer credit, student loans, student discipline, traffic stops, and many other domains on the basis of statistical disparities between racial groups - without any proof of discriminatory intent at all.  Discrimination is considered proven if policies or practices have an unequal impact on one group versus another.  Disparate impact theory is the reason landlords and employers have backed away from doing common-sense background checks on prospective tenants and employees, even though federal agencies routinely run background checks on their own hires. It’s also why mortgage lenders have gone back to making subprime loans in inner cities, to settle federal disparate impact lawsuits which have cost them billions in fines, even though federal pressure to make subprime loans was what caused the financial crisis of 2008.  School violence spiked after Obama’s school discipline reforms, something that received a lot of attention at the time.  Trump’s executive order, if signed, would prohibit federal agencies from using disparate impact theory in the application or enforcement of any civil rights law. 

Disparate impact theory is not mandated by the Constitution.  The 14th Amendment guarantees equal protection of the laws, but disparate impact theory is a concoction of bureaucrats that was adopted by the courts.  Courts had to torture language in statutes to get to justify the theory.  This was pointed out by the dissenters in a 2015 Supreme Court case, Texas Department of Housing v. Inclusive Communities.  Justice Kennedy wrote the majority opinion extending disparate impact theory to housing, but I have to tell you it’s about the weakest opinion I’ve ever read, full of made-up stuff and make-weight arguments.  Kennedy’s opinion was fundamentally dishonest, the most blatant example of results-oriented jurisprudence I’ve ever seen.  Justice Thomas pointed out in dissent that the EEOC wrote openly of creatively reading disparate impact theory into statutes knowing they would get away with it because courts grant administrative agencies a great deal of deference.  Justice Alito, also in dissent, illustrated the folly of disparate impact theory by relating the story of the housing authority in St. Paul which had tried to fix locks, get rid of rats, and bring about other improvements in rental properties.  But this raised rents and was deemed impermissible because of the disparate impact of higher rents on minorities. Alito wrote: “Something has gone badly awry when a city can’t even make slumlords kill rats without fear of a lawsuit.”

Once again we see liberal policies are not just wrong. They actually hurt people, and disparate impact theory is no exception.  The theory turns the presumption of innocence on its head and is manifestly unjust.  Not every statistical difference is about race.  The Constitution is supposed to be about equal protection, not back-door redistribution or guaranteeing equal outcomes.

But disparate impact theory will be hard to uproot, spread as it is through so many agencies and areas of law.  The theory is the driving force behind scores of regulations, thousands of government lawsuits, and billions of dollars in fines.  Not only that, a resistance campaign is underway and lawsuits against the possible removal of disparate impact regulations have already been filed. Congressional hearings are also in the works in the Democrat-controlled House.  But with changes in personnel at the Supreme Court, this will be one to watch if President Trump follows through and signs the order.