equal protection

Equal Protection Nonsense: Women at West Point Edition

On NPR’s Morning Edition today you’ll find the story “West Point Women: A Natural Pattern or a Camouflage Ceiling?” Reporter Larry Abramson leaves us with the impression that, in the words of Col. Ellen Haring (class of ’84), “women are being excluded from a taxpayer-funded educational opportunity”—or, as Abramson puts it:

The Army says it wants more women in the officer corps. The question is whether more will join an organization where their [sic] are still perceived limits on their numbers.

Col. Haring has a point, or would have one if the aim of West Point were simply to afford young men and women an “educational opportunity.” But the American people, through their representatives, presumably had a more precise goal in mind when they created West Point in the first place. National defense is a quintessential public good, defined as economists do, so we don’t need to argue about whether the government should be in that business. To be sure, the purpose of an army officer corps, pursuant to that goal, may change as technology changes. But for the present and the foreseeable future, there are certain limits on the composition of the corps that are set by its very function. By virtue of that function, the Army, at least at the officer level, never has been and, one hopes, never will be a come-one-come-all equal opportunity employer. The American people would be ill-served were that to happen.

Building Housing That Some People Can’t Afford Isn’t Racist

“Disparate impact” theory holds someone liable for discrimination for a race-neutral policy that statistically disadvantages a specific racial group — say, blacks score lower on a firefighter-promotion test than whites — even if that negative “impact” was neither foreseen nor intended. The application of this theory has been fraught with controversy, to say the least, but it comes up again and again, in contexts ranging from employment to education to voting.

While disparate impact claims have sometimes been sustained under the federal Fair Housing Act (which makes it unlawful to deny housing on the basis of race) since the 1970s, the Supreme Court has only recently agreed to decide whether these claims are lawful. Two years ago, the Court was about to hear such a case, Magner v. Gallagher, when the Justice Department, led by now-Labor Secretary Tom Perez, pressured the city of St. Paul, Minnesota to settle it. The same sort of political pressure is now being brought to bear on Mount Holly Township, New Jersey; supporters of disparate impact theory simply don’t think that it can survive legal scrutiny.

The current case involves a redevelopment plan for a blighted Mount Holly neighborhood (“the Gardens”) that would transform the neighborhood into mid-range single-family dwellings. (Thus far, the township has acquired 259 of 329 properties through various financial incentives, without yet resorting to eminent domain.) The Gardens’ residents sued, arguing that the redevelopment plan violated the FHA because a majority of them would not be able to afford the new homes.

The district court dismissed this argument, holding that the redevelopment plan affected Gardens residents equally, without regard to race, and was tied only to economic considerations. The court of appeals reversed that ruling, holding that the residents’ association had set out a case of discrimination under the theory of disparate impact because a majority of the affected residents were non-white.

Cato has now joined the Pacific Legal Foundation and four other public-interest organizations on an amicus brief arguing not only that disparate impact claims are impermissible under the text of the FHA, but that such claims force unconstitutional actions when applied to governments. Before putting race-neutral policies into effect, government agencies would have to determine whether a particular racial group would be disproportionately impacted and take steps to remedy that difference. By mandating an equality of ends — as opposed to an equality of opportunity — disparate impact liability encourages the adoption of discriminatory quota systems.

New Mexico Court Is Wrong: Government Must Treat People Equally, but Individuals Should Have Liberty to Speak, Associate, and Believe

On Thursday, the New Mexico Supreme Court ruled in Elane Photography v. Willcock that the First Amendment doesn’t protect a photographer’s right to decline to take pictures of a same-sex wedding against the requirements of the state’s Human Rights Act, which forbids discriminating against people on the basis of sexual orientation. This is a terrible result, for the freedom of speech and association, and for religious liberty.

Liberty’s Big Day at SCOTUS

Today, the Court upheld the equal liberty and dignity of all individuals, regardless of sexual orientation with its ruling in United States v. Windsor. This represents a major victory for gay rights, of course, but more broadly vindicates a robust view of individual liberty as protected by the Constitution.

D.C. Treats Celebrities Better Than Veterans, Illustrating the Absurdity of Gun Laws

Last month, D.C. attorney general Irvin Nathan announced that he would not be prosecuting David Gregory for displaying an empty ammunition magazine on his national TV show Meet the Press—even though NBC knew ahead of time that this action would violate D.C. law. In a letter to NBC, Nathan admonished Gregory for knowingly flouting the law, but said he decided to exercise “prosecutorial discretion” and not pursue a criminal case.

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