Topic: Law and Civil Liberties

The War Between Disparate Impact and Equal Protection Continues

For decades, courts have been struggling to reconcile two conflicting theories of what constitutes unlawful discrimination. The first theory, often called “disparate treatment,” reflects the commonly understood meaning of “discrimination.” Under this theory, a government action discriminates—violates the principle of equal protection or equality under the law—if it explicitly or implicitly treats members of one race or other special group differently from others. Examples of disparate treatment include Jim Crow’s black codes, university admission caps and quotas, and policies excluding women from certain positions.

The second theory, known as “disparate impact,” argues that the definition of discrimination should be much broader and include laws and policies that, while neutral in their application and operation, disproportionately harm members of a specific group. An example of a rule that would be considered discriminatory under this theory, but not under disparate treatment, would be a requirement that all soldiers in a particular unit be over six feet tall—because, as a statistical matter, far fewer women would be eligible than men. In several other cases, Cato has argued that allowing disparate impact theory claims against government bodies is problematic because the only way a government can assure that a rule doesn’t accidentally produce statistically unequal outcomes is to engage in intentionally discriminatory policies—like quotas—that can ensure a specific outcome.

Here is the case that proves this point: Buffalo makes promotions within its fire department on the basis of both merit and seniority. Firefighters who wish to be considered for advancement have to pass a set of exams. Those who are successful are placed on a list of candidates eligible for promotion within a set time period. If a candidate isn’t promoted within that period, however, the promotion qualification expires and he’s forced to re-take the exams.

During one administration of the exam, the only successful candidates were white. Because that was statistically unlikely given the racial makeup of the department, the city feared that if it promoted the successful candidates, it would be sued for having a policy that had a disparate impact on non-white firefighters. Its solution was to make a racially based decision not to promote any of the qualified candidates, allowing their promotion-list placements to expire.

In a litigation battle that has progressed in fits and starts over many years, Cato has now joined the Pacific Legal Foundation and other concerned groups on a brief reminding the New York Court of Appeals (that state’s highest court) that allowing government to engage in disparate treatment to avoid accusations of disparate impact simply trades one form of discrimination for another. And, as Chief Justice John Roberts wrote for a Supreme Court plurality back in 2007, the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.

The New York Court of Appeals will hear argument in the case of Margerum v. City of Buffalo on January 6 in Albany. For more on the “war between disparate impact and equal protection”—in the context of a previous firefighter-promotion case—see this prescient essay by Kenneth Marcus in the 2009 Cato Supreme Court Review.

Majority of Americans Misperceive Crime Trends

According to a recent Gallup survey, the majority of Americans think that crime is on the rise. This misperception persists year after year. Only 21 percent of Americans realize that crime is actually falling. Consider murder and rape alone:

Murder and rape are not the only crimes that are falling. The downward trend in U.S. crime rates also holds for simple and aggravated assaults as well as robberies. Crime, in other words, is falling across the board.

 

 Furthermore, the fall in crime is not limited to the United States. Globally, crime is down. For example, consider the homicide rate in Europe over the last century:

 

Why do most people perceive the world as increasingly crime-ridden despite statistical evidence to the contrary?

Harvard professor and HumanProgress.org advisory board member Steven Pinker provided a number of reasons for our deeply ingrained pessimism during a recent Cato event, “If Everything is Getting Better, Why Do We Remain So Pessimistic?” which can be viewed here. His book, The Better Angels of Our Nature, offers a more in-depth look at the decline of violence.

Obama’s Big Idea: Let’s Hike Federal Cop Subsidies

President Obama’s newly announced police-reform package lives up to one’s worst expectations. He flatly refuses to curtail the federal police militarization program, instead calling for a big hike in federal spending on aid to local departments with the usual micromanaging strings attached. These strings will predictably make departments more responsive to Washington, and lobbies with clout there, as distinct from their local communities. As USA Today notes, one powerful interest group has been especially active behind the scenes: “The Fraternal Order of Police, the nation’s largest police union, has waged an intense lobbying campaign to keep the surplus equipment flowing,” with its executive director specifically speaking up in favor of the transfer of armored vehicles and personnel carriers.  A Washington Post editorial notes that while the administration has now released some useful information on the Pentagon’s 1033 surplus-gear program, it still apparently has no plans to improve data gathering on police use of lethal force. 

In a related story that shouldn’t be missed, Conor Friedersdorf assembles excessive-force and misconduct horror stories of cops reinstated in union arbitration proceedings from Oakland, Philadelphia, Pittsburgh, Miami, Sarasota, and elsewhere around the country. He concludes:

I’d rather see 10 wrongful terminations than one person wrongfully shot and killed. Because good police officers and bad police officers pay the same union dues and are equally entitled to labor representation, police unions have pushed for arbitration procedures that skew in the opposite direction. Why have we let them? If at-will employment, the standard that would best protect the public, is not currently possible, arbitration proceedings should at a minimum be transparent and fully reviewable so that miscarriages of justice are known when they happen. With full facts, the public would favor at-will employment eventually.

You can’t tackle the excessive force problem credibly unless you tackle the power of the police unions. Period. 

[adapted from a post at Overlawyered]

The Washington Post On Dodd-Frank’s Conflict Minerals Fiasco

Economic sanctions, when they have an effect at all, tend to inflict misery on a targeted region’s civilian populace and often drive it further into dependence on violent overlords. That truism will surprise few libertarians, but apparently it still comes as news to many in Washington, to judge from the reaction to this morning’s front-page Washington Post account of the humanitarian fiasco brought about by the 2010 Dodd-Frank law’s “conflict minerals” provisions. According to reporter Sudarsan Raghavan, these provisions “set off a chain of events that has propelled millions of [African] miners and their families deeper into poverty.” As they have lost access to their regular incomes, some of these miners have even enlisted with the warlord militias that were the law’s targets. 

Congress added the provisions to Dodd-Frank in a fit of moral self-congratulation over making sure Americans had the chance to be ethical and thoughtful consumers of such products as jewelry and cellphones (as well as thousands of other products, as it turned out, from auto parts to the foil in food packaging). Publicly held companies would be required to report on their supply connections to “conflict minerals” such as tin, tungsten, and gold mined in war-torn areas of the Democratic Republic of the Congo. Lawmakers assigned enforcement of the law to the Securities and Exchange Commission – a body with scant discernible expertise in either African geopolitics or metallurgy – and barbed it with stringent penalties for disclosure violations, to which are added possible liability in class-action shareholder lawsuits.

Reactions to this morning’s Post account frequently employ words like “unintended” or “tragic” to describe the effect on miners of the law, which people in the Congo soon came to call “Loi Obama” – “Obama’s law”.  Unintended and tragic? Maybe. But not unforeseen, because the signs that the law would backfire this way have been in plain sight for years now – as in this 2011 account by Prof. Laura Seay (via) of how “electronics companies now have a strong incentive to source minerals elsewhere, leaving Congolese miners unemployed.” Or this 2011 account by David Aronson in the New York Times of the “unintended and devastating consequences” that he “saw firsthand on a trip to eastern Congo.” Or this more recent paper by law professor Marcia Narine.

But although the evidence has been there for years, the will to believe in the law was too strong – a will fueled by anti-corporate campaigners who take it on faith that when brutalities in the underdeveloped world occur within two or three degrees of separation of the activities of multinational businesses, the right answer must be to blame and shame the businesses.

You might call it an expensive lesson for Americans too, if you assume that anything has been learned. A recent Tulane calculation found that the costs in business compliance have already topped $700 million, with billions more ahead should nothing change. Just this September, the U.S. government conceded that it “does not have the ability to distinguish” which refiners and smelters around the globe are tainted by a connection to militia groups. That is to say, the government has demanded of business a degree of certainty that it cannot achieve itself.  Courtesy of UCLA corporate law professor Stephen Bainbridge, here’s a flowchart of what complying might involve for a given business. 

If the new Republican Congress wants to be taken seriously about fixing counterproductive regulation, it should make the repeal of this law an early priority.

Harvard’s Asian-American Problem Has a Solution, Chapel Hill’s Does Not

In his op-ed at the New York Times yesterday, Yascha Mounk, a fellow at New America, asked “Is Harvard Unfair to Asian-Americans?” A century ago, Harvard had a problem, he writes: “Too many Jews.” Today it’s Asian-Americans. Euphemistic admissions criteria like “character and fitness” solved Harvard’s problem back then. Today, numbers do the job. To get into the top schools, Mounk writes, Asian-Americans “need SAT scores that are about 140 points higher than those of their white peers.” And that’s brought on a suit by a group called Students for Fair Admissions.

If this case is decided eventually under current law, as is likely, the result will be less than clear or satisfying in several respects. To see why, just follow Mounk’s argument. One reason this “new discrimination” is tolerated, he notes, is that “many academics assume that higher rates of admission for Asian-Americans would come at the price of lower rates of admission for African-Americans.” But the two issues are unrelated, he continues:

As recognized by the Supreme Court, schools have an interest in recruiting a “critical mass” of minority students to obtain “the educational benefits that flow from a diverse student body.” This justifies, in my view, admissions standards that look favorably on underrepresented groups, like African-Americans and Latinos. But it can neither explain nor justify why a student of Chinese, Korean or Indian descent is so much less likely to be admitted than a white one.

Then what does explain why an Asian-American student is so much less likely to be admitted than a white one? Mounk continues:

Conservatives point to Harvard’s emphasis on enrolling African-Americans (currently 12 percent of freshmen) and Hispanics (13 percent) but overlook preferences for children of alumni (about 12 percent of students) and recruited athletes (around 13 percent). The real problem is that, in a meritocratic system, whites would be a minority—and Harvard just isn’t comfortable with that.

Ah! There we have it, Mounk believes. But notice that this “explanation” mentions, almost in passing, “a meritocratic system,” as if that were what we had. If we did—at least one based heavily on SAT scores—the aforementioned academics would be right: Harvard would admit far more Asian-Americans and far fewer African-Americans and Hispanics—and perhaps fewer legacy and athletic applicants as well.

The Decision of the Ferguson Grand Jury

President Obama has called on the nation to accept the decision of the Ferguson grand jury. But looking forward, across much of this country, our system for dealing with police use of deadly force is broken. Police shoot and kill civilians at a rate unheard of in many other advanced nations, and even after incidents where there are indications that excessive force was used, police across many parts of the country seldom face trial or even dismissal from the force. A system for review of police misconduct must take care to vindicate and protect the innocent cop, but it also needs to deliver a credible promise of justice to the communities being policed. As a front-line means of regulating lethal force, grand juries – which are secret, remote from the truth-finding of an adversary process, and dependent on prosecutors’ guidance – do not command broad public confidence.  We see that in Ferguson today.

The Ongoing Situation in Ferguson

The grand jury’s decision not to indict Darren Wilson is not surprising because police officers are rarely prosecuted for on-duty shootings.  And in the rare instances in which criminal charges are ever brought against police, juries are reluctant to hold them accountable with a felony criminal charge.  A report on Cato’s Police Misconduct web site found a conviction rate of only 33% – roughly half the percentage in non-police, civilian prosecutions.  It remains to be seen whether Wilson will be held accountable in some other way.  We must remember that just because a jury has declined to bring criminal charges does not automatically mean that Wilson should return to duty.  Police commanders may conclude, given all the surrounding circumstances, that he may not be right for police work. Certainly his involvement in Brown’s death will create problems for prosecutors who will have to rely on his future work. Wilson’s testimony in future trials could be very problematic.

With respect to the unrest in Ferguson, there seems to be a reluctance to acknowledge the crimes that are being committed by thugs who are taking advantage of the situation.  It seems wildly inaccurate to say that protesters have started fires and are looting stores, for instance.  The people doing that are criminal troublemakers, not “protesters.”