“Disparate Impact” – Part 4
How yet more public policies have become dysfunctional under threat of “disparate impact” lawsuits.
In the three previous essays in this series I’ve described how “disparate impact” legal claims have been used to threaten with lawsuits those who simply apply neutral rules, whenever the application of those neutral rules don’t result in outcomes in strict proportion to national racial demographic statistics. Indeed, a large variety of policies have been rendered dysfunctional under the threat of lawsuits based on claims of “disparate impact.”
As RealClear Investigations reported:
President Obama argued that African-Americans are particularly harmed by traditional practices in housing, banking, employment and education. He ordered agencies to collect personal information by race and turn the data over for analysis. The administration used the statistical disparities to accuse bankers, educators, police, landlords and employers of racism, and ordered them to shrink gaps between blacks and Latinos and whites and Asians to achieve “racial equity.”
To satisfy disparate-impact claims involving minorities, police departments and courts across the country have curtailed traffic stops and arrests, forgiven court fines and fees, and eliminated cash bail requirements for arrestees. Employers have eased policies requiring clean criminal records for new hires, out of concern that arrests and convictions disproportionately disqualify minorities from employment.
Landlords have also backed off similar background checks – which they've done for decades as standard rental policy, without regard for race – because such inquiries could result in higher refusal rates for black applicants …
A number of mortgage lenders have returned to making risky, subprime-quality loans in inner cities to help settle federal disparate-impact lawsuits that claimed uniform underwriting standards adversely impacted blacks and Latinos with weak credit.
Critics say government pressure to close racial gaps has led to the erosion of safety and other important standards, spawning unintended harm to minorities and non-minorities alike.
Violence in urban school districts, for instance, spiked as administrators pulled back on punishments under “disparate impact” mandates issued in 2014 by the Obama administration to reduce racial disparities in suspensions and school-related arrests and to inoculate themselves from federal threats of investigation and defunding.
Recent school surveys show violence, including student-on-teacher assaults, exploded after districts adopted the new discipline reforms, including in cities such as New York, Buffalo, Syracuse, Baltimore, Chicago, Oklahoma City, Milwaukee, and Minneapolis. In Parkland, Florida, confessed shooter Nikolas Cruz was able to legally purchase firearms because Broward County arrest-diversion programs designed to close discipline disparities meant that his name never showed up in government data bases despite repeated run-ins with law enforcement.
In a previous essay, I looked at how claims of disparate impact have weakened school discipline policies. As Charles Murray has explained in his book Human Diversity:
School systems in large urban areas are notorious for tolerating chaotic classrooms in a handful of schools in the most impoverished part of town. There’s no excuse for it. Children who are eager to learn are prevented from doing so, with lifelong consequences, and yet an outside intervention can completely cure that problem in a day: Install strict rules of in-class conduct, and promptly and without exception eject disruptive students from the classroom. Teachers will be able to teach and the remaining students will be able to learn. The difficulty, of course, is what to do with the students who have been ejected. Solving their problems is a matter of changing their personalities, abilities, or social behavior, or a combination of all three, [but] we don’t know how to do [that]. The underlying point of my example is why the solution works: We know how to help people who already want to do something and are artificially prevented from doing it. My solution doesn’t have to change the students who are already trying to learn. It just needs to provide them with an environment in which they are enabled to do what they already want to do. We are not constrained from helping with outside interventions. We’re just constrained in whom we can help with what kinds of problems.
One of those constraints limiting the application of sound policy is the threat of disparate impact lawsuits.
Concerns regarding disparate impact even threaten programs to improve the quality of teaching by retaining only the most qualified teachers, as minority teachers tend to have disproportionately lower qualifications and could be disproportionately excluded from teaching jobs. As the New York Daily News reported in 2017:
New York education officials are poised to scrap a test designed to measure the reading and writing skills of people trying to become teachers, in part because an outsized percentage of black and Hispanic candidates were failing it … [T]he literacy test raised alarms from the beginning because just 46 percent of Hispanic test takers and 41 percent of black test takers passed it on the first try, compared with 64 percent of white candidates. A federal judge ruled in 2015 that the test was not discriminatory, but faculty members at education schools say a test that screens out so many minorities is problematic … Ian Rosenblum, the executive director of the New York office of the Education Trust, a nonprofit that advocates for high achievement for all students, called the literacy test “a 12th grade-level assessment” -- something a high school senior should be able to pass.
“Disparate impact” theory has also been used to prohibit exam-based admissions. As was reported in the Wall Street Journal in 2020:
Virginia Attorney General Mark Herring has fired the latest salvo in America’s assault on meritocracy: a 61-page opinion holding that the suburban Loudoun County school system discriminated against black and Hispanic youngsters because its selective-admission high school, the Academies of Loudon, hadn’t admitted enough of them. Never mind that—as Mr. Herring acknowledged—the school’s test-based admissions process is open to all and fairly managed. Because its results have a “disparate impact,” the school system must scrap it. Nationwide, selective-admission public schools, also known as “exam schools,” are under attack because the demographics of their student populations don’t match those of their communities. Much like elite universities, critics allege, these schools have been admitting far too many whites and Asians and not nearly enough blacks and Latinos ... [However,] [o]n the National Assessment of Educational Progress, 13% of white eighth-grade students reached the “advanced” level in math last year, as did 31% of Asian kids, compared with only 2% and 4% of black and Hispanic children.
When learning standards are lowered or eliminated, there’s a real cost, not just to the educational system in general, but to the very people advocates of lowering those standards say they want to help. Allowing people to feel bad about failure, and penalizing failure, is a good thing, as it incentivizes learning from mistakes. As John Tierney and Roy Baumeister write in their book The Power of Bad:
Failing feels bad but provides more information than success. Trying to understand why you got a good grade on a test isn’t all that informative because you had to do well on every part of it. But analyzing a bad grade forces you to zero in on what you got wrong. In European military history, the strongest armies have repeatedly turned out to be the ones who lost the previous war, because the defeat inspired them to reorganize and make strategic innovations while the victors remained complacent. A reward focuses you inward; a penalty forces you to look at the world more carefully and make changes … Instead of recognizing the value of penalties, parents and educators have been moving in the opposite direction, away from the harsh punishments that used to be the norm, and the result has been disastrous for many students, particularly boys from disadvantaged homes … Teachers are trained at education schools to focus on praising children rather than highlighting their mistakes, and schools are reluctant to penalize either teachers or students for failure.
This shift from penalties to praise
is due partly to the self-esteem movement of the 1970s, one of the sorrier mistakes in the history of psychology. Researchers noticed that high self- esteem correlated with personal success in many endeavors, so they concluded that promoting self-esteem would help students thrive. Those researchers, unfortunately, had the causation backward: Being successful will indeed raise your self-esteem, but having a high opinion of yourself will not make you more successful. The self-esteem theory was soon enough discredited among research psychologists, but it has persisted among many educators and supposed experts in child development … In 1980 half of college students were male, but today women outnumber men by nearly 3 to 2 because so many males are floundering academically. Teachers lament that boys waste time mastering video games instead of schoolwork, but instead of simply blaming the boys, they should consider the games’ appeal. Players learn by competing for points and higher rankings. Instead of being shielded from failure to protect their self- esteem, they’re repeatedly killed and forced to start over. The penalties enable them to learn from their mistakes and eventually earn success by outscoring other players. If school offered them the same incentives, they’d learn there, too.
Disparate impact lawsuits are threatening many of those same positive incentives. Disparate impact claims have prevented employers from excluding job applicants based on their criminal records (because national “data supports a finding that criminal record exclusions have a disparate impact based on race and national origin”), the Consumer Financial Protection Bureau has filed disparate impact lawsuits against lenders if they applied certain tests to determine a loan applicant’s creditworthiness, and disparate impact lawsuits have also been filed to prevent companies from using credit histories in making hiring decisions to reduce theft. President Biden’s Director of the Consumer Financial Protection Bureau even vastly expanded the threats of disparate impact lawsuits in 2022 to cover a wide variety of businesses. As the Wall Street Journal notes:
The bureau’s new manual, which explains how businesses will be evaluated, simply defines any financial product or service that has a disparate impact as an “unfair, deceptive or abusive act or practice.” The CFPB says it will look for discrimination in “all consumer finance markets, including credit, servicing, collections, consumer reporting, payments, remittances, and deposits.”
In the next essay, we’ll examine the primary causes of disparities among people grouped by race.
Previous posts in this series:
