The Fulford File, By James Fulford | Disparate Impact: Legal And Political

10/23/2007

I was asked recently to provide more instances of "disparate impact" theory in politics. There are two versions of this:

Legally, "disparate impact" is a term of art coined in Griggs vs. Duke Power, 1971, which, to use Wikipedia’s summary

"The Court ruled against a procedure used by the company when selecting employees for internal transfer and promotion to certain positions, namely requiring a high school education and certain scores on broad aptitude tests. African-American applicants, less likely to hold a high school diploma and averaging lower scores on the aptitude tests, were selected at a much lower rate for these positions compared to white candidates"

Or, to use my summary, "The message of Griggs and "disparate impact" theory: if minorities fail tests at a higher rate than whites, it’s the test that’s wrong."

By John Derbyshire called Griggs one the "two body blows against the USA in the past half century" — the other being the Immigration Act of 1965. He said that Griggs

"[E]ssentially rules that Title VII of the 1964 Civil Rights Act forbids employers giving aptitude tests to prospective hires. In other words, it forbids an employer from trying to find out how smart you are before hiring you. "[Will the United States Survive Until 2022?, New English Review, January 2007]

This gives the Equal Employment Opportunity Commission (EEOC) tremendous power to mess up both civil service and private sector hiring, requiring them to hire ex-convicts and people with incomprehensible accents, because they're more likely to be members of minority groups. It also creates terrible problems for police and fire departments trying write civil service tests — there is no known test that blacks will pass at the same rate as whites. And it leads to lengthy court battles.

But there’s a second kind of "disparate impact", where the failings of minorities are used to blame American laws and lawmakers for racism. Here are some examples:

Felon Enfranchisement — felons can’t vote in many states. Democrats want them to be able to vote. This is disparate because more blacks are felons, color blind in the sense that people don’t want white felons voting.

Seat Belt Laws — disparate because blacks buckle up less often than whites, so if a state doesn’t have tough seatbelt laws, more blacks get hurt. Not the lawmakers' fault, and when seatbelt laws are enforced, it’s racial profiling.

Credit Ratings — insurance companies that set rates based partly on credit ratings are disparately affecting blacks. Do you really think insurance companies want to give white people, or any people at all, a break?

Slums — the idea that an anti-crowding ordinance trying to prevent 10 unrelated laborers from sharing a two-bedroom apartment "targets families based on their nationality." Disparate because Americans don’t want to live that way, but Mexicans do.

Menthol Cigarettes — this one is weird. Black people smoke menthol cigarettes because they like them. A matter of personal taste, like Texans and chicken-fried steak. That means that the tobacco companies are accused of "marketing to them" and this is bad because "the soothing effect of menthol enables deeper inhaling, menthol cigarettes have a disparate impact on black smokers health." A lawsuit based on that idea was filed under the Civil Rights Acts of 1866 and 1870. Who the Texans are supposed to sue for chicken-fried steak, I can’t say.

Statehood for the District of Columbia — Obviously, the federal status of the District comes from the Constitution, but because blacks are the majority of DC’s population, not making them a state is considered racist. I'd merely like to add I distinctly recall that blacks moved to DC in the pre-civil rights era specifically to escape States' Rights, and that the decline in the white population of the district was caused by black crime.

Teacher Competence — blacks and Hispanics pass these tests at a lower rate than whites. But people don’t want their kids taught by stupid white teachers either.

Mortgage Lending — fewer blacks per capita can qualify for mortgages, and this is considered racist. Peter Brimelow pointed out in 1993 that default rates tended to be the same, which means that banks were using color-blind measures of ability to repay (banks want to lend money, but of course, they want it back, too). But still, recently John Edwards was crying "racism" at the idea that blacks pay higher rates on average.

There’s a pattern here — any standard at all that Americans may want to maintain is considered to be racist if minorities, on average, don’t measure up. Broader examples would include

The whole idea, popular in the 70s, that "law and order" was a "code word" for bigotry.

The similar idea, twenty or thirty years later, that Giuliani’s war on crime in New York was caused by the same bigotry. But really, the experience of crime in the nineteenth century and later during Prohibition showed that people really didn’t enjoy being robbed and beaten by white criminals.

The idea, promoted by Linda Chavez, that "immigration enforcement" is a code word for similar bigotry. But earlier mass immigration of Irish and Italians showed that whites could be just as disruptive. Besides, is America responsible for the fact that its Mexico that’s next door to the U.S., or for the fact that the Mexican caste system makes for more Mexican Indians wanting to leave the country?

So this whole "disparate impact" idea is all part of what we call "Abolishing America".

You will be unsurprised to learn that under the Bush Administration, the EEOC has been increasing enforcement. A new Bush Administration program called the E-RACE Initiative (Eradicating Racism And Colorism from Employment) is promising to make employers lives hell if theyre not hiring the right number of bad credit risks and criminals.

The reason that shouldn’t surprise anyone is that the whole amnesty thing has also been promoted by Bush on the same grounds — that not granting amnesty to illegals is discriminating against Hispanics. The following is a parody, from the humor site IMAO:

IMMIGRATION BILL FAQ

Q. I’m concerned that the immigration bill focuses more on giving illegal immigrants amnesty than border protection. Does the President share these concerns?

A. The President doesn’t hate brown people.

Q. This isn’t a racial issue. Many people think this bill will only encourage more illegal immigration and leave our borders open and dangerous. What are the answers to these charges?

A. To answer your underlying question, I’m afraid the President is against your proposal to commit genocide against Hispanics.

Q. This isn’t about Hispanics! This is about our laws being respected and our national security!

A. Unfortunately, America has had a long history of closed-minded bigots like you….

All right, you get the picture. That’s parody, but here’s what Bush actually said:

"Those determined to find fault with this [immigration] bill will always be able to look at a narrow slice of it and find something they don’t like. If you want to kill the bill, if you don’t want to do what’s right for America, you can pick one little aspect out of it, you can use it to frighten people." [Bush Attacks Immigration Deal Opponents By Ben Feller, Associated Press, May 29, 2007]

That was Bush saying that if you don’t want to amnesty illegal Mexican immigrants, it must be because …youre some kind of anti-Mexican bigot.

And that’s the "disparate impact" standard all over.

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