I would like to bring Judge Ho to the attention of the readers of Heterodox STEM. Judge Ho was appointed to the United States Court of Appeals for the Fifth Circuit in 2018. As an immigrant to the US who has worked extremely hard to succeed, Judge Ho understands the importance of merit-based evaluations and and equality of opportunity for everyone. As he said recently, “I’ll never forget my college advisor telling me that, after all my hard work, my grades and test scores and activities and everything else, I should be accepted at my top choice of school—if only I weren’t Asian.” Critically, he can explain succinctly why discriminating on the basis of race is inconsistent with federal law, in addition to being unethical. He does this in his concurrence in Manning Rollerson vs. Brazos River Harbor Navigation District of Brazoria County Texas, now known as Port Freeport; United States Army Corps of Engineers. Case: 20-40027, which is posted below. It’s worth reading, especially to refine your thinking on the difference between real discrimination and disparate impact theory.
Congress enacted Title VI of the Civil Rights Act of 1964 to prohibit intentional racial discrimination—not to restrict neutral policies untainted by racial intent that happen to lead to racially disproportionate outcomes. See 42 U.S.C. § 2000d; Alexander v. Sandoval, 532 U.S. 275, 280–81 (2001) (“[§2000d] prohibits only intentional discrimination,” not “activities that have a disparate impact on racial groups”).
There’s a big difference between prohibiting racial discrimination and endorsing disparate impact theory. See, e.g., William N. Eskridge, Jr., Dynamic Statutory Interpretation 78 (1994) (disparate impact is “a significant leap away from” intentional racial discrimination). It’s the difference between securing equality of opportunity regardless of race and guaranteeing equality of outcome based on race. It’s the difference between color blindness and critical race theory. Compare Martin Luther King, Jr., I Have A Dream: Address to the March on Washington for Jobs and Freedom (Aug. 28, 1963) (“I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.”), with Ibram X. Kendi, How to Be an Anti-Racist 18 (2019) (“A racist policy is any measure that produces or sustains racial inequity between racial groups.”); see also ‘When I See Racial Disparities, I See Racism.’ Discussing Race, Gender and Mobility, N.Y. Times (Mar. 27, 2018), available at https://www.nytimes.com/interactive/2018/03/27/upshot/readerquestions-about-race-gender-and-mobility.html?smid=tw-share.
Prohibiting racial discrimination means we must be blind to race. Disparate impact theory requires the opposite: It forces us to look at race—to check for racial imbalance and then decide what steps must be taken to advance some people at the expense of others based on their race.
But racial balancing is, of course, “patently unconstitutional.” Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 723 (2007). Accordingly, “serious constitutional questions . . . might arise” if “[disparate impact] liability were imposed based solely on a showing of a statistical disparity.” Tex. Dep’t of Hous. & Cmty. Affs. v. Inclusive Cmtys. Project, Inc., 576 U.S. 519, 540 (2015). See also Ricci v. DeStefano, 557 U.S. 557, 594–96 (2009) (Scalia, J., concurring) (same).
So disparate impact theory must be justified, if at all, as nothing more than a legal presumption that evidence of racial imbalance is evidence of racial discrimination—at least until the defendant can prove otherwise. As in any area of the law, evidence of guilt can be hard to come by. Requiring evidence of discrimination can therefore result in underenforcement. And so its proponents point out that disparate impact theory can help “uncover[] discriminatory intent” and “counteract unconscious prejudices and disguised animus” or “covert and illicit stereotyping” that “escape easy classification as disparate treatment.” Inclusive Cmtys., 576 U.S. at 540. Think of it as “an evidentiary tool . . . to identify genuine, intentional discrimination—to ‘smoke out[]’ . . . disparate treatment.” Ricci, 557 U.S. at 595 (Scalia, J., concurring).
But a presumption of discrimination runs into a bedrock principle of our legal system. We ordinarily assume innocence, not bigotry. Plaintiffs must typically prove, not presume, discrimination. “We should not automatically presume that any institution with a neutral practice that happens to produce a racial disparity is guilty of discrimination until proved innocent.” Inclusive Cmtys., 576 U.S. at 554 (Thomas, J., dissenting).
Moreover, opponents of disparate impact theory worry that it will only exacerbate, rather than alleviate, racial tension—by pressuring defendants to adopt policy changes for the explicit purpose of taking from some and giving to others based on their race. They fear that disparate impact theory means not only presuming discrimination, but requiring it. See, e.g., Ricci, 557 U.S. at 594 (Scalia, J., concurring) (“disparate-impact provisions place a racial thumb on the scales, often requiring employers to evaluate the racial outcomes of their policies, and to make decisions based on (because of) those racial outcomes”).
A former Justice Department official offered the following illustration of this concern: “If a bigoted Los Angeles employer determined that he had been hiring ‘too many’ Asians and Jews by giving a particular test, and therefore deliberately discarded the test for one that he knows will result in fewer of them being hired, all would agree that this violates the law. And yet, it is precisely this kind of calculation that disparate-impact theory applauds.” Roger Clegg, The bad law of “disparate impact”, The Public Interest, Winter 2000, at 87-88.
The illustration turned out to be prescient: The Supreme Court confronted that very fact pattern a few years later in Ricci. The Court there noted that “[a]ll the evidence demonstrate[d] that the City chose not to certify the examination results because of the statistical disparity based on race.” 557 U.S. at 579 (emphasis added). “[T]he City rejected the test results because ‘too many whites and not enough minorities would be promoted were the lists to be certified.’” Id. (quoting district court opinion). And the city candidly admitted that it did so “to avoid disparate-impact liability.” Id. at 580.
The Court made two observations about the city’s conduct that are no doubt troubling to disparate impact opponents. First, the city’s decision to set aside the exam results out of fear of disparate impact liability resulted in racial discrimination against those who succeeded on the exam—precisely as Clegg predicted. Second, this racial discrimination would be perfectly permissible as a matter of disparate impact law, so long as there is a “strong basis in evidence” that it was necessary to avoid disparate impact liability. See, e.g., id. at 585 (“We hold . . . that, under Title VII, before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional disparate impact, the employer must have a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory action.”).
So these are not frivolous concerns of discrimination that we’re talking about here. In fact, for disparate impact advocates, requiring discrimination may not be a problem—it may be the whole point. To quote one leading critical race theorist, “[t]he only remedy to past discrimination is present discrimination,” and “[t]he only remedy to present discrimination is future discrimination.” Kendi, supra, at 19.
To be sure, then, citizens can debate in good faith whether disparate impact theory is the right way to eliminate the scourge of racial bigotry from our Nation. To some, it is the cure. But to others, it is worse than the disease.
My point is simply this: If disparate impact theory is going to be incorporated into federal law, it should be done by Congress—not agency regulators. See generally Inclusive Cmtys., 576 U.S. at 550–53 (Thomas, J., dissenting). “[S]ubstantive federal law . . . must be created by Congress.” Sandoval, 532 U.S. at 286.
It’s hard to imagine an area where we should be more wary of vesting discretion in public officials than race. Our Nation’s history is replete with tragic lessons in this regard. See, e.g., Plessy v. Ferguson, 163 U.S. 537 (1896), overruled by Brown v. Board of Ed., 347 U.S. 483 (1954). We have learned the hard way to distrust those who claim they’re using race for benevolent, rather than nefarious, ends. See, e.g., Fisher v. Univ. of Tex. at Austin, 570 U.S. 297, 325 (2013) (Thomas, J., concurring) (“We grant that segregation may not be the ethical or political ideal. At the same time we recognize that practical considerations may prevent realization of the ideal”) (quoting Kansas Br. on Rearg. in Brown v. Bd. of Educ., O.T. 1953, at 56); id. (“[I]t would be unwise in administrative practice . . . to mix the two races in the same schools at the present time”) (quoting Appellees’ Br. in Briggs v. Elliott, O.T. 1952, at 26-27); id. (“‘[T]he mores of racial relationships are such as to rule out, for the present at least, any possibility of admitting white persons and Negroes to the same institutions’”) (quoting Respondents’ Br. in Sweatt v. Painter, O.T. 1949, at 96).
So public officials may sincerely believe that race-conscious policies are beneficial rather than corrosive. But the American people have never been the blindly trusting sort. Citizens may fairly wonder how officials can condemn race-neutral policies as racist and defend explicitly race-conscious programs as inclusive. Compare Complaint, United States v. Georgia, 2021 WL 2629488, No. 1:21-cv-02575-JPB (N.D. Ga. June 25, 2021) (challenging Georgia Senate Bill 202 as racially discriminatory), with Defendants’ Opposition to Plaintiffs’ Motion for a Preliminary Injunction, Faust v. Vilsack, No. 21-CV-548-WCG (E.D. Wis. June 18, 2021) (defending exclusion of white farmers from the American Rescue Plan Act). Citizens are understandably skeptical when government officials claim that they’re just here to help—but then declare that up is down, left is right, race consciousness is good, and race neutrality is bad.
It’s said that the road to hell is paved with good intentions. That’s why we have laws on the books, like Title VI, that simply forbid the “sordid business” of “divvying us up by race”—no matter what our intentions. League of United Latin Am. Citizens v. Perry, 548 U.S. 399, 511 (2006) (Roberts, C.J., concurring in part, concurring in the judgment in part, and dissenting in part). And that’s why I agree with Judge Jones that, if we are to adopt disparate impact theory as a matter of national policy, it must be done by Congress—not “by judicial or administrative fiat.” Ante, at 21.
SCOTUS!!!
Hello Happy! Thanks for commenting and your interest in my science! I submitted an article titled, "Simple physics and integrators accurately reproduce Mercury instability statistics" to ApJ today. If you send me an email I can send you a copy. Have a great day! -Dorian