Disparate Impact

04/10/2015 02:52 pm ET | Updated Jun 09, 2015

There is a case before the Supreme Court which is, I think, little known. The case is called Texas Department of Housing v Inclusive Communities Project (ICP). Assuming that sanity prevails and the Justices find for the Texas Department of Housing, then this case will remain in happy obscurity. If, conversely, they find for the ICP (and President Obama's Department of Justice, which backs its claim), then this name will live on in infamy. The decision is expected in June.

The case brought by the ICP relies on the doctrine of "disparate impact", which is defined, in a recent Economist article, as a theory "which deems any act that disproportionately harms minorities to be discriminatory, regardless of intent". In other words, it will simply be necessary to prove that any policy - an entrance exam, a hiring requirement, an allocation of government funds, a police or court process, for example - produces a numerically skewed outcome in order to have a case for discrimination.

It is hard to imagine a more disruptive legal rule or one that would be more offensive to most people's sense of justice. If accepted by the court, this would open a floodgate of potential discrimination litigation, the "proof" of which would simply become a numbers game: any field where minorities, or logically any group, are under-represented would become open to a charge of discrimination. Justice Antonin Scalia, himself a full-blooded member of an Italian-American minority group that long suffered severe discrimination in America, has pointed out the absurdity of this claim by reference to the NFL: "The fact that the NFL is largely black players is not discrimination."

To realize the difficulty of applying such a rule, we need only look at Mayor Bill de Blasio's farcical assault on the entrance exams for New York City's elite high schools, such as Stuyvesant High School. De Blasio's conclusion, as summarized in the sub-title of a recent Economist article, is "Top marks largely go to Asians. Bill de Blasio wants to change the exams." Goaded by their notorious "Tiger Mothers" and with families that are willing to sacrifice everything for the education of their children, Asians now make up 70% of the pupils in Stuyvesant, even though Asians are an ethnic minority that has been heavily stigmatised and segregated throughout American history and many of them are poor and recent arrivals in America. Meanwhile, the percentage of white pupils at Stuyvesant used to be 80% in 1970 but now has fallen to 25%, in a mirror image of the sales line for Sony PS3 and PS4 gaming consoles. The percentage of blacks and Hispanics has remained low throughout this period, although Mayor de Blasio's own mixed-race son attends the elite Brooklyn Tech High School.

So please, Attorney General Eric Holder, tell us how the doctrine of "disparate impact" is supposed to help any court decipher the rights and wrongs of these exams? And while you are at it, please tell us how to define the population to which the disparate outcome should be compared? Is it the population of New York City, or the population of exam takers, or the population of science students, or some other arbitrarily defined group? And while we are at it, why don't we extend the doctrine to other groups, such as ones defined by gender, ethnicity, sexual orientation, or physical characteristics? And why limit ourselves to a single characteristic when we can mix and match them? Why shouldn't chubby, black, male, heterosexuals expect to have the same representation at Stuyvesant as they do in the overall population? Isn't this only fair?

Surely, it is obvious to anyone outside of the Obama Administration and De Blasio's mayoral office that this doctrine is a recipe for endless litigation, further ethnic polarization and an enhanced cult of victimhood among minority groups which would be better served by emulating the success of recent Asian immigrants than trying to undercut it.

Let's hope that the Supreme Court dismisses this claim with the contempt it deserves.