In attempting to diversify schools, reformers claim discrimination when a test does not produce the desired racial composition of students (“Richard Carranza’s black and white approach is ruining city schools,” New York Post, Apr. 10). But different outcomes among different groups are not by itself proof of discrimination, which is known as “disparate impact.”
I’ve never understood why the issue ever arose. Disparities will always exist in outcomes that have nothing whatsoever to do with discrimination. They occur because people are different, regardless of race. Some students work harder than others. Some are simply smarter than others. Yet reformers refuse to accept this reality. They persist in seeing discrimination unless results conform to a predetermined pattern.
No race is a monolith. Just because blacks and Hispanics do not constitute the same percentage of students from other races does not mean prejudice is the reason. If anything, there is reverse prejudice at work. I’m thinking now of the suit against Harvard University filed by Asian students claiming that they are the victims of discrimination since they must score much higher on the SAT to be admitted than blacks and Hispanics.
Rather than blaming the messenger, reformers need to ask why blacks and Hispanics do not perform as well on tests. It’s likely that the test is not to blame.
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“Disparate impact” is a legitimate tool to be used in discrimination cases. The critical point — that is often overlooked or even intentionally misrepresented — is that “disparate impact” is an evidentiary tool rather than proof.
When application of a particular standard/test results in a disparate impact on a protected class, this disparate impact is evidence that the person applying the standard/test is illegally discriminating against the protected class. However, the disparate impact is only one piece of evidence. The party accused of illegal discrimination can introduce evidence showing that there is no illegal intent. If such evidence is introduced, then the burden shifts back to the complainant to introduce further evidence of illegal intent.
Lawyers and judges can — and do — wrap themselves into complicated intellectual reasoning knots trying to articulate how much weight should be given to disparate impact evidence, what kind of evidence is needed to rebut disparate impact evidence, and how much “rebuttal” evidence is required to shift the burden of going forward back to the complainant.
There is the separate but related legal-analysis issue of whether the accused’s actual motive matters in a discrimination case. For example, suppose a black employer (who has donated a lot of $ to the NAACP and belongs to a black church) requires applicants for manual labor jobs to have at least 600s on the SAT + suppose that this standard has a dramatic disparate impact on black applicants + suppose that the black employer offers no justification for the 600s-on-SAT requirement other than saying “I like having intelligent people around me” + a rejected black applicant with 580 SATs sues alleging racial discrimination.
There are several ways lawyers and judges could approach this disparate-impact analysis. The traditional pro-civil-rights approach would be: Disparate impact + no good reason for the standard (the 600s-on-SAT requirement creates a conclusive presumption that the employer acted from illegal motive and we will not look at extrinsic evidence re the employer’s attitudes towards blacks. A traditional moderate-on-civil-rights approach would be: Disparate impact + no good reason is strong evidence of unlawful motive, but the ultimate issue is the employer’s actual motive + the extrinsic evidence re the employer being pro-black rather than anti-black shows the actual motive (having intelligent people around) — although unusual from a business perspective — is not racial so no unlawful discrimination.
It’s superficially attractive to reject “disparate impact” analysis entirely and always demand extrinsic evidence of unlawful anti-protected-class motive — i.e., hiring less-qualified whites rather than more-qualified blacks, making racial slurs, internal employer memos disparaging blacks. But, there are real-world situations where the only actual evidence of the bad-actor’s motive is the disparate impact of the standard being used by the bad-actor — an obvious example would be the literacy tests long used in Southern states to limit black voting. If we throw out “disparate impact” analysis entirely, some gross discrimination will go unremedied.
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Labor Lawyer: Thanks for this very important information. Unfortunately, motive is given short shrift when a test does not produce the desired outcomes. The current controversy over admission to New York City’s elite high schools is a case in point. The Specialized High Schools Admissions Test has resulted in the majority of seats going to Asian students. I don’t believe that the motive is to exclude black and Hispanic students. But that’s precisely what critics claim. The rationale is to accept only students who have the wherewithal to handle rigorous work. If that just so happens to result in few black and Hispanic students, so be it.
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Yes — the fundamental dispute re “disparate-impact” analysis is whether the alleged discriminator’s actual motive should matter.
The pro-civil-rights advocates argue that the actual motive does not matter; where the test/standard being used has a disparate impact and the alleged discriminator fails to provide a powerful justification for using the test/standard, the test/standard is unlawful. This approach maximizes the interests of the protected class who are harmed by the test/standard and minimizes the interests of the alleged discriminator (as well as whoever is benefiting from the test/standard).
The traditional legal thinkers/moderates argue that the govt can/should only prohibit discrimination where the alleged discriminator’s actual motive is to discriminate against the protected class + that “disparate impact” of a test/standard is only evidence suggesting the alleged discriminator’s actual motive.
I’m strongly in the latter group. Largely because — in the long run — where the govt interferes with individual’s decision-making without regard to the individual’s actual motive, the result will almost always be rationally perceived as giving an unwarranted advantage to the protected class. This, in turn, will rationally tick off everyone who is not a member of the protected class. And that, in turn, will increase hostility towards the protected class as well as weakening the public’s/voters’ pressure on govt to prosecute the real bad-motive discriminators.
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Labor Lawyer: I agree. Yet criticism of tests used never attempts to question the real motive – only the outcomes. That’s absurd because no race is a monolith. There will always be differences for reasons having nothing at all to do with the test.
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