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.

Final Essays in Cato Growth Forum

Here are the final five essays in the Cato Institute’s online forum on reviving growth:

1. Reihan Salam wants to end the bias in favor of corporate debt – and expand school choice.

2. Peter Howitt calls for flat taxes on consumption and wealth.

3. Ben Wildavsky thinks we are subsidizing the wrong college students.

4. Philip Auerswald targets barriers to home healthcare delivery.

5. George Selgin explores alternatives to the monetary policy status quo.

Topics:

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.

Two Very Depressing Charts for President Obama, Two Very Encouraging Charts for America’s Taxpayers

Let’s look at some fiscal data that must be very depressing for President Obama and other advocates of big government.

Which means, of course, that this information must be very good news for American taxpayers!

Here’s a chart looking at annual federal spending since 2000. You’ll notice that spending skyrocketed from 2000-2009 (a time when libertarians were justifiably glum), but look at how the growth of government came to a screeching halt after 2009.

Here are some specific numbers culled from the OMB data and CBO data. In fiscal year 2009, the federal government spent about $3.52 trillion. In fiscal year 2014 (which ended on September 30), the federal government spent about $3.50 trillion.

In other words, there’s been no growth in nominal government spending over the past five years. It hasn’t received nearly as much attention as it deserves, but there’s been a spending freeze in Washington.

Now let’s look at what happens when government is put on a diet.

How Predictable Is an UberX Income?

Some of the appeal of the so-called “sharing economy” is that it allows providers to earn money with assets that would otherwise not be used. Thanks to Uber, Lyft, and Airbnb, a car that would normally sit in the driveway and a spare bedroom can both be used to make some extra money with relative ease. According to Uber, the May median annual income for its full-time New York City rideshare drivers is $90,766 (although this figure has been contested), well above the New York City median income of $46,540. This figure may appeal to those who might want to be an Uber rideshare driver, even if only part-time. However, data released by Uber shows that in order to make a predictable income as an UberX driver in New York City you will have to work long hours.

Yesterday, Uber released the following graph: 

 

The graph is based on data gathered from what Uber described as “a randomly selected sample” of New York City UberX drivers during the week of November 3rd. The y-axis shows the drivers’ average hourly post-deduction wage and the x-axis shows the number of hours worked per week. 

Uber’s post highlights that the average hourly wage for New York City UberX drivers for the November 3rd week remained relatively constant regardless of the number of hours worked. According to Uber, “the average earnings per hour for a driver who’s online for 5 hours is roughly the same as the average for a driver who’s online for 65 hours.”

However, Uber’s data suggests that if UberX drivers want a reliable income they will have to work more hours. The second graph released by Uber shows how much the drivers shown in the first graph would earn in a year if they worked the same number of hours for 50 weeks. 

As Slate’s Alison Griswold has pointed out, this graph shows that the more hours you work as an UberX driver in New York City the more reliable your average hourly income becomes. For instance, New York City UberX drivers working more than 70 hours a week for 50 weeks can expect to earn between $70,000 and $90,000 per year. Yet, the graph also shows that if you are working as an UberX driver in New York City part-time (less than 40 hours a week), your income is much less predictable.

UberX is understandably an attractive option for those who want to earn some money in their spare time. But what Uber’s own data reveals is that part-time UberX drivers should not expect a more predictable income than those who rideshare on a full-time basis.

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]

Who Will Watch the Watchdogs?

Inspectors General (IGs) serve an important purpose within the federal bureaucracy. They are supposed to be independent, internal watchdogs that guard against fraud, corruption, waste, and other failures. But based on the recent actions of some Inspectors General, their independence is being questioned.

Congress created the system of Inspectors General in 1978 with support from both parties and President Carter. The 72 IGs monitor agency activities and report on agency malfeasance.  Many IGs are appointed by the president to shield them from agency interference.

In theory, IGs are supposed to crack down on waste, but IGs are often too soft on their agencies. Complaints have increased over the last several years. The Washington Examiner discusses the issue:

In the past two years, IGs at a half-dozen Cabinet-level agencies have been accused of retaliating against whistleblowers or softening their findings to protect top department executives or the White House.

Damning information about high-level misconduct has been scrubbed from recent IG reports at the Departments of State, Defense, Homeland Security, Interior and a slew of independent agencies, according to congressional reports and outside watchdog groups.

The Commerce IG has been rebuked for retaliating against his own people by the U.S. Office of Special Counsel and two congressional committees.

At the Department of Veterans Affairs, the acting inspector general is under fire for downplaying whistleblower claims and absolving the agency of blame for patient deaths in a high-profile report, even though the report confirmed that the VA used phony scheduling practices that led to delays in care.

Whistleblowers who have turned to Congress or the media routinely say inspectors general failed to investigate their charges of wrongdoing and then idly watched as their bosses subjected them to brutal retaliation for exposing agency secrets.

Even investigators within IG offices have faced retaliation for reporting internal wrongdoing or attempts to withhold embarrassing findings, according to congressional reports.

IGs are supposed to be guardians of the public interest, but sometimes they are the opposite. Congress has even had to use its subpoena power to force IGs to release documents and reports in some cases.

IGs serve an essential function ensuring that taxpayer funds are spent wisely, but many IGs are falling short on their oversight responsibilities. If they refuse, who will watch the watchdogs? As James Madison wrote in Federalist 51, “”In framing a government which is to be administered by men over men…, you must first enable the government to control the governed; and in the next place oblige it to control itself.”