A Tangled Web - Thomas Sowell column
While the recent Supreme Court decision in the New Haven firefighters' case will be welcome news to those who don't think that a gross injustice is O.K. when those on the receiving end are white, the reasoning behind the 5-to-4 decision is a painful reminder that the law is still tangled in a web of assumptions, evasions and contradictions when it comes to racial issues.
Nor have these problems been clarified with the passage of time. On the contrary, the growing complexity and murkiness of civil rights law over the years recalls the painful saying: "Oh, what a tangled web we weave when first we practice to deceive."
The original Civil Rights Act of 1964 was very straightforward in forbidding discrimination. But, even before that Act was passed, there were already people demanding more than equality of treatment. Some wanted equality of end results, some wanted restitution for past wrongs, and some just wanted as much as they could get.
Opponents of the Civil Rights Act said that it would lead to racial quotas and reverse discrimination. Advocates of the Act not only denied this, they wrote the language of the law in a way designed to explicitly prevent such things. But judges, over the years, have "interpreted" the Civil Rights Act to mean what its opponents said it would mean, rather than what its advocates put into the plain language of the legislation.
A key notion that has created unending mischief, from its introduction by the Supreme Court in 1971 to the current firefighters' case, is that of "disparate impact." Any employment requirement that one racial or ethnic group meets far more often than another is said to have a "disparate impact" and is considered to be evidence of racial discrimination.
In other words, if group X doesn't pass a test nearly as often as group Y, then there is something wrong with the test, according to this reasoning or lack of reasoning. This implicitly assumes that there cannot be any great difference between the two groups in the skills, talents or efforts required.
That notion is the grand dogma of our time -- an idea for which no evidence is asked or given, and an idea that no amount of contradictory evidence can change in the minds of the true believers, or in the rhetoric of ideologues and opportunists.
Trying to reconcile that dogma with the principle of equal treatment for all has led courts into feats of higher metaphysics that the Medieval Scholastics could be proud of.
The dogma survives because it is politically useful, not because it has met any test of facts. Innumerable facts against it can be found around the world and down through history.
All sorts of groups in all sorts of countries have been demonstrably better than other groups at particular things, whether economic, intellectual, political or military. This fact is so blatant that only people with great cleverness can manage to deny the obvious. That cleverness is what creates the tangled web of confusion that has plagued civil right cases for decades.
Does anybody seriously doubt that blacks usually play basketball better than whites? Does anybody seriously doubt that the leading cameras and lenses in world have long been produced by Germans and Japanese? Or that Jews have been over-represented among the top performers in various intellectual fields?
Many groups whose performances have greatly outstripped the performances of others in a particular field have often been in no position to discriminate, even when the disparities have been far greater than those between blacks and whites in the United States.
In a number of countries, powerless minorities have so outperformed the dominant majority that group preferences and quotas have been instituted to favor the majority group that has otherwise been unable to compete. This has happened in Malaysia, Sri Lanka, Nigeria, and Fiji, among other places. Before World War II, quotas to benefit the majority were common in a number of European universities, where Jewish students outperformed others.
It is not stupidity, but ideology and politics, which allow the "disparate impact" dogma to create a tangled web of deception in even the highest levels of our legal system. The recent Supreme Court's decision in the New Haven firefighters' case was a rare example of sanity prevailing, even if only by a vote of 5-to-4.
A tangled web (Part II)
Much of the backlog of cases in our over-burdened courts has been created by the courts themselves, with adventurous judicial "interpretations" of laws that leave a large gray area of uncertainty around even the most plainly written legislation. Lawyers, of course, fish in these troubled waters, creating much needless litigation, but it is judges who have troubled the waters in the first place.
Nowhere is this more true than in civil rights cases. Since the Constitution of the United States and the Civil Rights Act of 1964 both decree equal treatment for all, there should not be nearly as much basis for litigation in civil rights cases as there is -- at least not in cases where the facts are well known and undisputed, as in the recent New Haven firefighters' case that made it all the way up to the Supreme Court.
What was it that required three different levels of federal courts to try to figure out whether what actually happened was or was not racial discrimination -- with a decision finally being reached by the narrowest possible margin of 5-to-4 in the Supreme Court?
At the heart of much of this legal complexity and moral angst is a judge-made theory that a "disparate impact" of any job requirement on different groups is evidence of discrimination.
With two very different theories of what constitutes job discrimination -- either different treatment or different outcomes -- it is no wonder that courts have tied themselves into knots trying to figure out whether a particular case shows racial discrimination, even when the facts are known and plain.
The same notion -- and the same confusion -- applies in many other situations. If a higher proportion of blacks than whites get turned down for mortgage loans, then that too has been taken as evidence of racial discrimination.
It doesn't matter if blacks and whites are different on innumerable factors that go into mortgage loan decisions, as are Hispanics or Asian Americans as well.
All these groups have different credit scores, different incomes and many other differences. Why is it surprising that they have different loan approval rates? While the issue is often posed in terms of whites versus non-whites, whites also get turned down for mortgage loans more often than Asian Americans, who usually have higher credit scores than whites.
Only the underlying dogma that different outcomes for different groups are evidence of discrimination makes this an issue -- and a source of unending controversy and polarization.
It is not that judges are incapable of seeing through the intellectual flaw in the "disparate impact" dogma. But that dogma is too central to efforts at social engineering to be given up for the sake of mere logic or facts.
That is why courts split along ideological fault lines in cases like the New Haven firefighters' case, where the crucial facts are not even in dispute. The only real dispute is over whether a test is automatically biased if different groups pass it at different rates. Apparently the groups themselves cannot possibly be different, according to "disparate impact" theory.
Facts play a very small role in such issues -- including the facts as to whether social engineering -- especially a lowering of standards for blacks -- actually helps blacks on net balance. But empirical studies indicate that black students do better at colleges and universities where their qualifications are similar to those of the other students at those institutions and worse where they are admitted with wide disparities in qualifications.
Where in fact have blacks been most successful? Sports and entertainment come to mind immediately. These are areas where blacks have to meet the same standards as anybody else.
If Derek Jeter swings at three pitches and misses, he is out, just like any white ballplayer. If people stop watching Oprah Winfrey's program, it will get cancelled, just like anybody else's.
The biggest beneficiaries from the "disparate impact" dogma are those who claim to be helping minorities. They benefit by feeling noble, winning votes or attracting money. The actual consequences for blacks -- or for the polarization of American society -- seems to be of little concern.
Nor have these problems been clarified with the passage of time. On the contrary, the growing complexity and murkiness of civil rights law over the years recalls the painful saying: "Oh, what a tangled web we weave when first we practice to deceive."
The original Civil Rights Act of 1964 was very straightforward in forbidding discrimination. But, even before that Act was passed, there were already people demanding more than equality of treatment. Some wanted equality of end results, some wanted restitution for past wrongs, and some just wanted as much as they could get.
Opponents of the Civil Rights Act said that it would lead to racial quotas and reverse discrimination. Advocates of the Act not only denied this, they wrote the language of the law in a way designed to explicitly prevent such things. But judges, over the years, have "interpreted" the Civil Rights Act to mean what its opponents said it would mean, rather than what its advocates put into the plain language of the legislation.
A key notion that has created unending mischief, from its introduction by the Supreme Court in 1971 to the current firefighters' case, is that of "disparate impact." Any employment requirement that one racial or ethnic group meets far more often than another is said to have a "disparate impact" and is considered to be evidence of racial discrimination.
In other words, if group X doesn't pass a test nearly as often as group Y, then there is something wrong with the test, according to this reasoning or lack of reasoning. This implicitly assumes that there cannot be any great difference between the two groups in the skills, talents or efforts required.
That notion is the grand dogma of our time -- an idea for which no evidence is asked or given, and an idea that no amount of contradictory evidence can change in the minds of the true believers, or in the rhetoric of ideologues and opportunists.
Trying to reconcile that dogma with the principle of equal treatment for all has led courts into feats of higher metaphysics that the Medieval Scholastics could be proud of.
The dogma survives because it is politically useful, not because it has met any test of facts. Innumerable facts against it can be found around the world and down through history.
All sorts of groups in all sorts of countries have been demonstrably better than other groups at particular things, whether economic, intellectual, political or military. This fact is so blatant that only people with great cleverness can manage to deny the obvious. That cleverness is what creates the tangled web of confusion that has plagued civil right cases for decades.
Does anybody seriously doubt that blacks usually play basketball better than whites? Does anybody seriously doubt that the leading cameras and lenses in world have long been produced by Germans and Japanese? Or that Jews have been over-represented among the top performers in various intellectual fields?
Many groups whose performances have greatly outstripped the performances of others in a particular field have often been in no position to discriminate, even when the disparities have been far greater than those between blacks and whites in the United States.
In a number of countries, powerless minorities have so outperformed the dominant majority that group preferences and quotas have been instituted to favor the majority group that has otherwise been unable to compete. This has happened in Malaysia, Sri Lanka, Nigeria, and Fiji, among other places. Before World War II, quotas to benefit the majority were common in a number of European universities, where Jewish students outperformed others.
It is not stupidity, but ideology and politics, which allow the "disparate impact" dogma to create a tangled web of deception in even the highest levels of our legal system. The recent Supreme Court's decision in the New Haven firefighters' case was a rare example of sanity prevailing, even if only by a vote of 5-to-4.
A tangled web (Part II)
Much of the backlog of cases in our over-burdened courts has been created by the courts themselves, with adventurous judicial "interpretations" of laws that leave a large gray area of uncertainty around even the most plainly written legislation. Lawyers, of course, fish in these troubled waters, creating much needless litigation, but it is judges who have troubled the waters in the first place.
Nowhere is this more true than in civil rights cases. Since the Constitution of the United States and the Civil Rights Act of 1964 both decree equal treatment for all, there should not be nearly as much basis for litigation in civil rights cases as there is -- at least not in cases where the facts are well known and undisputed, as in the recent New Haven firefighters' case that made it all the way up to the Supreme Court.
What was it that required three different levels of federal courts to try to figure out whether what actually happened was or was not racial discrimination -- with a decision finally being reached by the narrowest possible margin of 5-to-4 in the Supreme Court?
At the heart of much of this legal complexity and moral angst is a judge-made theory that a "disparate impact" of any job requirement on different groups is evidence of discrimination.
With two very different theories of what constitutes job discrimination -- either different treatment or different outcomes -- it is no wonder that courts have tied themselves into knots trying to figure out whether a particular case shows racial discrimination, even when the facts are known and plain.
The same notion -- and the same confusion -- applies in many other situations. If a higher proportion of blacks than whites get turned down for mortgage loans, then that too has been taken as evidence of racial discrimination.
It doesn't matter if blacks and whites are different on innumerable factors that go into mortgage loan decisions, as are Hispanics or Asian Americans as well.
All these groups have different credit scores, different incomes and many other differences. Why is it surprising that they have different loan approval rates? While the issue is often posed in terms of whites versus non-whites, whites also get turned down for mortgage loans more often than Asian Americans, who usually have higher credit scores than whites.
Only the underlying dogma that different outcomes for different groups are evidence of discrimination makes this an issue -- and a source of unending controversy and polarization.
It is not that judges are incapable of seeing through the intellectual flaw in the "disparate impact" dogma. But that dogma is too central to efforts at social engineering to be given up for the sake of mere logic or facts.
That is why courts split along ideological fault lines in cases like the New Haven firefighters' case, where the crucial facts are not even in dispute. The only real dispute is over whether a test is automatically biased if different groups pass it at different rates. Apparently the groups themselves cannot possibly be different, according to "disparate impact" theory.
Facts play a very small role in such issues -- including the facts as to whether social engineering -- especially a lowering of standards for blacks -- actually helps blacks on net balance. But empirical studies indicate that black students do better at colleges and universities where their qualifications are similar to those of the other students at those institutions and worse where they are admitted with wide disparities in qualifications.
Where in fact have blacks been most successful? Sports and entertainment come to mind immediately. These are areas where blacks have to meet the same standards as anybody else.
If Derek Jeter swings at three pitches and misses, he is out, just like any white ballplayer. If people stop watching Oprah Winfrey's program, it will get cancelled, just like anybody else's.
The biggest beneficiaries from the "disparate impact" dogma are those who claim to be helping minorities. They benefit by feeling noble, winning votes or attracting money. The actual consequences for blacks -- or for the polarization of American society -- seems to be of little concern.
