Did Kagan Have a “Disparate Impact” on Military Recruiters?

Perhaps you remember the case of Ricci v. DiStefano, so much discussed during Sonia Sotomayor’s confirmation process?   To recap briefly: The city of New Haven had used a written test to determine which of its local firefighters would be considered for promotions. When the tests came back, it turned out that the high scorers were overwhelmingly Caucasian, and so the city—fearing a lawsuit from black and Latino firefighters who hadn’t made the cut—scrapped the results. Not, mind you, because the test was in any way discriminatory on its face, but because federal law frowns on any test that has a “disparate impact” on minority groups unless it can be shown to be both closely related to the requirements of the job and less uneven in its effects than comparable alternatives. A number of the white firefighters then sued, claiming that it was discriminatory to discard the test after the fact just because the high scorers were too pale.  Bracket the question of how Sotomayor, as a circuit court judge, should have ruled.  Clearly as a policy question, most conservatives seemed disposed to side with the firefighters, and in general conservatives have been highly skeptical of “disparate impact” standards.  If the standards are facially neutral, and were not chosen with any pernicious intent (the argument runs), we should let the chips fall where they may. Sounds fairly compelling to me.

So it’s a little odd to see folks like Weekly Standard editor Bill Kristol casually talk about Elena Kagan’s “discrimination against the military” during her tenure as dean of Harvard Law School. All Kagan did, after all, was enforce Harvard’s preexisting rule requiring firms wishing to recruit through the school’s Office of Career Services to certify that they did not discriminate by sexual orientation. (This is not the same, incidentally, as “banning recruiters from campus”—the military did continue to recruit on campus via a student group.) It was a neutral rule that applied to any company that wished to avail itself of the Office of Career Service’s assistance, from which the military would have required a special exemption.  Kristol clearly didn’t think much of the logic of “disparate impact” in the Ricci case, so why is he so quick to adopt it here? There are many good reasons to be worried about Kagan, not least her apparent fondness for an expansive conception of executive power, but a commitment to even-handed application of the rules is not among them.