June 09, 2009

John Rosenberg shreds the "disparate impact" theory

Rosenberg over at Discriminations (whom I consider to be my "blogfather" -- the one blogger that really influenced me to begin blogging myself) totally annihilates the "disparate impact" theory of discrimination, which is at the heart of the Ricci lawsuit. Disparate impact, like too many diversity/discrimination/multicultural theories, ultimately implodes in the logic department when one begins to examine it. In Ricci, the disparate impact was using a promotion test for its firefighters which no black applicants passed. Fearful of a lawsuit (by black applicants, using disparate impact claims), the town of New Haven, CT, ditched the exam completely. This led to a different suit -- that of white firefighters (and one Hispanic) -- the one to come before the SCOTUS shortly.

John opines:

What if the complaint of Ricci et al. were treated as a disparate impact claim? And why shouldn’t it be? If using a test that disproportionately disadvantages a racial or ethnic group risks a disparate impact suit, why shouldn’t not using a test that disproportionately disadvantages a racial or ethnic group risk an identical suit? Just as honoring the test’s results would lead to the promotion of no blacks, just as surely not honoring the test’s results would lead to the failure to promote only whites (and one Hispanic) who would otherwise have been promoted. I would pay a not inconsiderable fee to read the briefs and listen to New Haven’s arguments in such a lawsuit, to hear it reply, as it must, that not honoring its test’s results was a “business necessity.”

In the real world, a concern for disparate impact ... has a disparate impact. If you think I exaggerate, give me a list of cases where defendants have been held liable for policies or practices that had a disparate impact on Asians, whites, or other non-preferred minority groups.

... the city’s argument that its decision was not discriminatory because no one was promoted has a foul smell to it. It reeks of the old segregationist argument that closing a municipal swimming pool to avoid integration and banning interracial marriages are not discriminatory because the pool closing and the interracial marriage ban apply equally to all races (as I argued here).

Disparate impact is akin to the "proportionate representation" argument -- that jobs, education, etc. should "mirror" the community ... that the percentage of whites, blacks, Hispanics, Asians, et. al. in whatever realm should approximate the percentage of those groups in the general population. Of course, when one considers one of, if not the, biggest "fly in the ointment" to this theory -- professional sports -- well, then, uh, nevermind!

There's also the "diversity" theory that posits academic (and other) benefits arise from a diverse student body (and workforce, etc.) This whole premise was the basis for the [in]famous Grutter SCOTUS case. But the whole "diversity has academic benefits" hypothesis remains just that, and in fact that National Association of Scholars showed that this theory actually has little merit. But even if it did hold water -- what then would be the rationale for maintaining HBCs -- Historically Black Colleges? Separate ethnic dorms, freshmen orientations ... and graduations? Etc.?

It's little wonder that the only place such nonsense is given any sort of consideration is within the walls of academia. And the insular world of leftist law.

Posted by Hube at June 9, 2009 12:43 PM | TrackBack

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