Thursday, July 30, 2009

Disparate Impact

Shelby Steele, author of White Guilt and Affirmative Action Baby, has a column in the WaPo that I commend to anyone interested in the conversation about race in this country. As he does in his books Steele argues that affirmative action is not so much about helping blacks, it's more about relieving largely white institutions from the burden of guilt for past racial injustice. It's a way of gaining for themselves a kind of racial absolution. Steele writes, for instance, that:

It is important to remember that the original goal of affirmative action was to achieve two redemptions simultaneously. As society gave a preference to its former victims in employment and education, it hoped to redeem both those victims and itself. When America -- the world's oldest and most unequivocal democracy -- finally acknowledged in the 1960s its heartless betrayal of democracy where blacks were concerned, the loss of moral authority was profound. In their monochrome whiteness, the institutions of this society -- universities, government agencies, corporations -- became emblems of the very evil America had just acknowledged.

Affirmative action has always been more about the restoration of legitimacy to American institutions than the uplift of blacks and other minorities. For 30 years after its inception, no one even bothered to measure its effectiveness in minority progress. Advocates of racial preferences tried to prove that these policies actually helped minorities only after 1996, when California's Proposition 209 banned racial preferences in all state institutions, scaring supporters across the country.

But the research following from this scare has .... has completely failed to show that affirmative action ever closes the academic gap between minorities and whites. And failing in this, affirmative action also fails to help blacks achieve true equality with whites -- the ultimate measure of which is parity in skills and individual competence. Without this underlying parity there can never be true equality in employment, income levels, rates of home ownership, educational achievement and the rest.

In order to account for the elusive competitive parity latent racism and discrimination are assumed to be lurking insidiously in the nooks and crannies of society, always working to keep blacks from getting ahead. The proof that these malefactors are still in play is the occurrence of "disparate impact," an indicator not of black failure but of an indelible white racism.

We are headed now, it seems, into a legal thicket created by the incompatibility of two notions of equality: "disparate impact" and "equal protection under the law." The former is a legalism evolved from judicial interpretations of Title VII of the 1964 Civil Rights Act; the latter is a constitutional guarantee. Disparate impact lets you presume that an entire class of people has been discriminated against if it has been disproportionately affected by some policy. If no blacks do well enough on a firefighters promotion exam to win advancement while many whites do (Ricci v. DeStefano), then this constitutes discrimination against blacks.

Disparate impact and racial preferences represent the law and policymaking of a guilty America, an America lacking the moral authority to live by the rigors of the Constitution's "equal protection" -- a guarantee that sees victims as individuals and requires hard evidence to prove discrimination. They are "white guilt" legalisms created after the '60s as fast tracks to moral authority. They apologize for presumed white wrongdoing and offer recompense to minorities before any actual discrimination has been documented. Yet these legalisms are much with us now. And it will no doubt take the courts a generation or more to disentangle all this apology from the law.

We blacks know oppression well, but today it is our inexperience with freedom that holds us back almost as relentlessly as oppression once did. Out of this inexperience, for example, we miss the fact that racial preferences and disparate impact can only help us -- even if they were effective -- with a problem we no longer have. The problem that black firefighters had in New Haven was not discrimination; it was the fact that not a single black did well enough on the exam to gain promotion.

Today's "black" problem is underdevelopment, not discrimination. Success in modernity will demand profound cultural changes -- changes in child-rearing, a restoration of marriage and family, a focus on academic rigor, a greater appreciation of entrepreneurialism and an embrace of individual development as the best road to group development.

I'd like to post Steele's complete column, but I refer you instead to the link. There's much more there that's worth considering.

RLC