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Jewish World Review
July 8, 2009
16 Tamuz 5769
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?
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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.
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