October 8, 2013

Another hit against the Obama Administration's disparate impact crusade

By Joshua P. Thompson Senior Attorney

In previous posts, we have explained how the Obama Administration has been exploiting disparate impact theory in unprecedented ways.  There seems to be simply no possible avenue for American businesses, schools, governments, or employers to avoid being dragged into a disparate impact lawsuit.  Can you screen employees for criminal histories? Nope, that would result in a disparate impact.  Can employers ensure that employees handling their finances have a good credit history?  Nope, disparate impact.  Can employers reward employees that do their job well?  No again, because that would result in a disparate impact.  How about a school that disciplines students that disrupt class?  That’s a disparate impact lawsuit too.  There is literally no end to what can result in a disparate impact lawsuit.   And what happens when a group challenges the Obama Administration’s disparate impact demagoguery?  The Administration engages in backroom horse trading to ensure the issue never gets to the Supreme Court.

Despite the Administration’s ongoing campaign to racially balance each and every aspect of American life, the courts might have finally seen enough.  Earlier this year, we saw a number of dubious disparate impact lawsuits get thrown out of court, and the courts had some harsh words for the Administration in those opinions.  But those opinions pale in comparison to the recent opinion of Justice Markman from the Michigan Supreme Court.  In response to the Administration’s attempt to use disparate impact to scare the Michigan Supreme Court into adopting different internal protocols, Justice Markman had this to say:

The breadth of the Department’s demands, and the intransigence of its position, are all the more remarkable in light of the flimsiness of the legal support for its view that Michigan and other states would be in violation of the laws of the United States by failing to adopt in toto its LEP rules.… Not surprisingly, the Department fails to provide any specific details or documentary, non-anecdotal evidence of instances in which discriminatory practices within the Michigan court system have actually prevented any individual from “meaningfully participating” in the judicial process because of race, color, or national origin. But, of course, as the Department views things, “discrimination” does not simply mean “discrimination,” as traditionally understood i.e., distinguishing or differentiating between persons “because of,” “due to,” “on account of,” “on the basis of,” or “on the grounds of” race, color, or national origin, but encompasses also the theory of “disparate impact or results,” or statistical “discrimination.” … As the media has widely reported, Assistant Attorney General Perez, apparently apprehensive that the U.S. Supreme Court might directly repudiate the “disparate impact” theory, engaged in a quid pro quo in February with the city of St. Paul, Minnesota, whereby the Department agreed not to intervene in two civil rights cases against the city in exchange for the city’s agreement to withdraw its appeal in Magner v Gallagher, a case calling the “disparate impact” theory into question and scheduled to be heard by the U.S. Supreme Court.… However, not only has the Department failed to present any evidence of any intentional discrimination by Michigan based “on the ground of race, color, or national origin,” but it has failed even to present evidence of “disparate impact discrimination,” much less connect a state’s LEP policies with Title VI discriminations.…

This is only a snippet of what Justice Markman had to say, and I encourage you to read the entire opinion. [Starts at page 12 here]   Needless to say, Justice Markman echoes a lot of concerns we at PLF have been raising about disparate impact for years.  It will be interesting to see whether the courts continue to reject the Administration’s efforts to inject racial balancing into all aspects of American life, or if the Administration’s bullying tactics will continue unabated.

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