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The Supreme Court Finally Gets Real On "disparate Impact"

The Supreme Court’s decision in favor of the New Haven firefighters whose test results were discounted is welcome news indeed for making our discussions of race and racism clearer and more honest.

It’s high time the Title VII stipulation on “disparate impact,” based on a 1971 codicil gloss on the Civil Rights Act’s banning of intentional discrimination in 1964, was revised. In itself, it makes sense--but mission creep has led to a distorted sense of what it means, or should mean.

For example, if colleges and universities had, in an alternate universe, a requirement that applicants be able to demonstrate a certain level of skill in playing a musical instrument, then this would be a policy of clearly unjust disparate impact on people from low-income communities where public schools have had vestigial or absent music programs for decades. And the case is easy to make that being able to wangle a bassoon solo is of no meaningful import to one’s ability to get through college.

Those who will spend the week decrying the Supreme Court’s decision will imply that all cases of disparate impact are like that one, and that to set a tougher precedent on when to call it must mean that we are turning back the clock, dismissing the persistence of racism, etc.

However, this is false reasoning.

For example, the defense of the New Haven decision has been based on the fact that the test had disparate impact on black applicants. And obviously it did--but the question is why there was the disparate impact. Title VII was designed to address where racism or discrimination created disparate impact.

The creeping assumption that where there is disparate impact the cause must be discrimination is just that, a meandering and sloppily reasoned assumption.

At the very least, it is worth investigation and assessment as to whether that assumption is true. That is, to do so, and possibly to revise that assumption as the Supreme Court just has, cannot be dismissed as backwards, racist, a sad day, and so on.

For example, there are reasons, as I have written in this space, as to why black applicants are often not as good in the aggregate as white ones in taking standardized tests. The reasons have to do with history and culture. Oral cultures, in which the written word is mostly for utilitarian purposes, do not condition a comfort with abstract, direct questions. The basic human condition is one in which language is an oral phenomenon used mostly for immediate, utilitarian reasons, not scratches on paper posing queries about the hypothetical. People raised in fundamentally oral cultures need training into a less natural but useful realm such as the kind that standardized tests embody. It happens all the time.

The idea that the solution in New Haven was to throw out the test--or engage in aggrieved rationalizing as to whether the test corresponds perfectly to the job itself, as if anyone ever thought it did--is ultimately based on a sense that it is somehow vaguely unfair, not quite "the thing," to require black people to really kick ass on tests, especially if it turns out that they are not great at them at first. How dare we suggest that black people do more prep beforehand (as lead defendant Ricci did) and do so as early as many of the white ones did, as described here?

No, our job must be to cry "disparate impact," letting pass vague notions that the test was “culturally biased,” and leaving in the air an unspoken assertion that to question whether disparate impact is always due to discrimination is to be a racist.

It’s one thing to state that those defending New Haven have done so on the basis of the precedent of ruling on the basis of disparate impact. That in itself is true, although the sheer brevity of the decision that Sonia Sotomayor participated in is still unsavory, as if the disparate impact argument were utterly transparent and logically unassailable.

In that light, it is logically indefensible to insist or imply that a decision made on the basis of the disparate impact precedent is no longer subject to re-evaluation by moral people.

And in 2009, when racism, while existing, is a different thing than it was in 1964, a decision to pull back on the disparate impact argument could be one conducted in illogical fashion. However, it could equally well be a coherent argument – and the decision today would appear to be of the latter kind.

For many, the ultimate rub will be a discomfort with turning away from disparate impact arguments when there is still inequality in our society. This discomfort, however, is based on a presumption that all discrepancies between groups are based on present-day discrimination--or it must be, because surely we can’t go back into the past and fix injustice perpetrated then. Richard Thompson Ford’s The Race Card is useful on this.

Yes, there is still actual discrimination to stamp out in America, as I mentioned last week re the NAACP’s case against aiming hopeless subprime deals at poor black communities. However, this does not mean that all bad news for minorities is due to The System holding them down.

Few would deny this in itself, but many entertain an idea that the “systemic” part is so vast a proportion of what ails us that the other part is barely worth discussion. The case for this gets more rickety every year, though. Bill Cosby and Alvin Poussaint, for example, did not write their excellent Come On People about trivia. They wrote it about a body of issues regarding health, school, childrearing and other things where there is only so much The System could do, all disparateness acknowledged.

“Unequal outcomes are due to unequal opportunity”--this watchcry is simply not true. The disparate impact rationale is based on this untruth. For too long now, it has been used for a kind of intellectual and moral browbeating, obscuring richer and more complex issues of the kind we would expect in a human society with a complex history.

The Supreme Court’s New Haven decision is not evidence of the “rolling back” of anything. It is a symptom of honesty, clarity, and true progress.