Disparate Impact and Higher Education: Here Comes the DOE

Glenn Ricketts

There’s a piece this week in the Chronicle of Higher Education (subscription required) describing the Obama administration’s intention to pursue “disparate impact” civil rights enforcement with vigor.  In a speech in Selma, Alabama, U.S. Education Secretary Arne Duncan indicated that the administration planned to initiate “compliance review” investigations of selected school districts and six colleges across the country, noting that “racial and gender discrimination” are still significant barriers for many students seeking access to higher education.  The secretary emphasized that these measures were being undertaken to compensate for the laxity of civil rights enforcement over the past decade. 

“Disparate impact,” which has its origins in Title VII of the 1964 Civil Rights Act, has been a major part of the racial/ethnic/sexual numbers game that we’ve been playing for several decades, and was given its judicial stamp of approval in the Supreme Court’s 8-0 ruling in Griggs v. Duke Power Company in 1971In that case, the court held that employers who use standardized tests or other measures in the process of assessing the abilities of prospective employees can be held liable if the subsequent hiring results reflect undue “disparities” among racial, ethnic or sexual categories. This means specifically that an employer can wind up on the hook for “discrimination” even if his intentions and the tests or other qualifying criteria were demonstrably neutral and non-discriminatory.  It’s the final racial or ethnic proportions which count. You can avoid legal hot water only by establishing that your use of tests is directly related to the job in question, and if no other suitable method for gauging the qualifications of applicants is available.  The deck is thus pretty heavily stacked against employers, who essentially face a de facto presumption of guilt and a very low threshold for possible litigation.   

Once again: it won’t avail you to demonstrate that your intentions are honest and your hiring procedures are untainted, because if they happen to produce purely random statistical disparities among racial or ethnic categories, you could still get in big trouble.  I know that’s probably very much at odds with what the average Joe in the street thinks “discrimination” is, but it’s unfortunately how the feds and the courts have seen it for quite some time.   

So what do you do if you’d understandably like to avoid the hassle of being “investigated” by eager junior staffers in federal agencies or sued by unsuccessful job applicants?   Resorting to race-based hiring quotas is one obvious solution, and it would be interesting to know how many employers do so routinely beneath the radar screen.  Or you may decide to discard the results of an otherwise legitimate promotion test, as the city of New Haven’s fire department did when successful candidates for advancement did not include enough blacks or Hispanics to avoid “disparate impact” problems.  Those denied their promotions were fortunately vindicated in the Supreme Court’s verdict in Ricci v. De Stefano, which we analyzed here last summer.  The problem for us then and now is that the court, while concluding that New Haven had erred in discarding the test scores, declined to address the question of whether Title VII’s “disparate impact” provisions are compatible with the 14th Amendment’s equal protection clause. 

And that’s why I’m nervous about the Obama administration’s latest initiative, because there’s no telling at this point where they intend to go with it.  The account in the Chronicle suggests that DOE is casting a very wide net, and will be sending “guidance” letters to all – that’s all – school districts and colleges in the country, reminding them of their heavy “civil rights responsibilities.” And, notwithstanding the court’s tweaking in the Ricci case, “disparate impact” remains mischievously open-ended. Federal bureaucrats can still invoke plenty of statutory and judicial clout wherever they decide to conduct a “compliance review.” The immediate question is how broadly Secretary Duncan and the DOE are likely to construe “civil rights responsibilities.” Pretty broadly, I expect. 

I was ever so slightly heartened by the observation of one former DOE civil rights head’s observation that “simple statistics” don’t necessarily reflect discrimination, as in the fact that women now outnumber men among the ranks of undergraduate students.  Personal choices or preferences, she observed, might account for such disparities as well.  That seems on the money, but how about the male/female numbers in aeronautics, mathematics and physics programs?  Will the DOE’s “compliance reviews” attribute them to random factors, or will they agree with the incessant charges from campus feminists that “discrimination” is likely behind it all?  Or how will they view the continuing “underrepresentation” of minority faculty members at most colleges and universities, notwithstanding their strenuous, often frantic efforts to hire them? (See, for example, this account of “diversity” hiring in the March 10 Inside Higher Ed) Will they nevertheless end up in the dock for “disparate impact” noncompliance?   

We’re about to find out, it seems. And who knows? Perhaps all of this may lead us to what Justice Scalia, in his Ricci concurrence, called “the evil day” when the Supreme Court will finally be obliged to confront the question of whether Title VII’s disparate impact provisions are compatible with the 14th amendment’s equal protection guarantees. Let’s hope that it does.  Brace yourself for the short term, though.

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