“Equity”: Disparate Impact, Unhinged

Long-time correspondent, former western newspaper editor Linda Seebach, comments on my recent Stanford post that “A lot of the mischief has been enabled by “disparate impact” as a legal justification for lawsuits. Maybe that needs to go too.” That is such a good point that I want to address it in a post rather than replying to her comment. (Whenever I hear from Linda she always either makes excellent points or, all too often, points out some grammatical or other glitch in what I’ve written .)

Here, she is of course right. Disparate impact, finding discrimination in policies or practices even in the absence of any intention to discriminate, has done extensive damage. “Equity,” however, threatens to do a great deal more. It is disparate impact, unhinged and unleashed. It is true that disparate impact finds discrimination even without a discriminator, or at least one who is intentionally discriminating. But the evidence on which it depends — the incriminating “effects” — must at least be shown to be the result of some policy or practice. Not so with “equity.”

For our new equitarians (where do I pay the fine that should be imposed for attempting to coin new words?), no such nexus to any person, policy, or practice is required. The mere fact of racial or ethnic “disparities” (unless whites are the ones “underrepresented”) is alone both the result and proof of “systemic” or “structural” racism and must be remedied.

This new woke orthodoxy — challenge it in many institutions and you risk being cancelled — makes a mockery of what we used to think of as civil rights. It not only allows but requires quotas, flying in the face of settled Constitutional law going back to Powell’s controlling opinion in Bakke:

If petitioner’s purpose is to assure within its student body some specified percentage of a particular group merely because of its race or ethnic origin, such a preferential purpose must be rejected not as insubstantial but as facially invalid. Preferring members of any one group for no reason other than race or ethnic origin is discrimination for its own sake. This the Constitution forbids.

Now, a more accurate statement would be, “This the Constitution currently forbids,” for if the Democrats ever succeed in eliminating the filibuster and packing the Supreme Court the progressive chorus will soon be singing “Bye, Bye Bakke,” with its rejection of outright quotas and tepid attempt to limit racial preference in admission to “tips” in close cases.

“Equity,” in short, has removed “discrimination” altogether from its notion of civil rights, which is so extreme that it can lead to incoherence and even humor. Consider, if you have the stomach for it, poor Princeton.

Two years ago, as I discussed here, Princeton President Christopher Eisgruber issued an Open Letter to the university community promising to step up anti-racism efforts and discussing his “plans to combat systemic racism at Princeton.” He agreed with the woke faculty who had been pressuring him that “We must ask how Princeton can address systemic racism in the world, and we must also ask how to address it within our own community.” He agreed that “Racism and the damage it does to people of color nevertheless persist at Princeton as in our society, sometimes by conscious intention…. Racist assumptions from the past … remain embedded in structures of the University itself.” His remedies were right out of the “equity” handbook: to assemble “a faculty that more closely reflects both the diverse makeup of the students we educate . . . To that end, we … aspire to increase by fifty percent the number of tenured or tenure-track faculty members from underrepresented groups over the next five years.”

What followed would qualify for a skit on Saturday Night Live, back in the day when it was funny. As I commented here:

President Eisgruber’s admission of pervasive systemic racism at Princeton provoked the U.S. Justice Department into launching an investigation, since Princeton had affirmed many times in applying for federal funds that it did not discriminate. This in turn led eighty college presidents to write a letter opposing the DOJ investigation, arguing in effect (with unintended humor) that just because a university admits to systemic racism embedded in its structures doesn’t mean it discriminates against anyone.

Can racism really be systemic, I concluded, if it produces no discrimination?

Wait! Don’t ask! My question is rhetorical. Depending on where you are, if you ask you’ll get cancelled.




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