More Affirmative Action

 More Affirmative Action

"Disparate results" require lowering of standards in the legal profession, which came up with the disparate impact concept in the first place. Upon taking office in 2021, President Biden announced that he would no longer submit his judicial nominees to the American Bar Association (ABA) for a preliminary rating. Why? According to a member of the White House Counsel’s Office, allowing the ABA to vet candidates would be incompatible with the “diversification of the judiciary.”

This claim was dubious. The ABA, after all, cannot open its collective mouth without issuing a bromide about the need to diversify the bar. Its leading members are obsessed with the demographics of corporate law firms and law school faculties. This is the same ABA that gave its highest rating to a Supreme Court nominee who as a justice would make the false claim during a challenge to Covid vaccine mandates that “over 100,000 children are in serious condition [from Covid] and many are on ventilators.”

State bar associations are also busy watering down standards to eliminate disparate impact. In 2020, California lowered the pass score on its bar exam because black applicants were disproportionately failing. Only five percent of black law school graduates passed the California bar on their first try in February 2020, compared to 52 percent of white law school graduates and 42 percent of Asian law school graduates. The lack of proportional representation among California’s attorneys was held to be proof of a discriminatory credentialing system.

The pressure to eliminate the Law School Admission Test (LSAT) requirement for law school admissions is growing, because it too has a disparate impact. As a single mother told an ABA panel, “I would hate to give up on my dream of becoming a lawyer just due to not being able to successfully handle this test.” Note the assumption: the problem always lies with the test, never with the test taker. The LSAT requirement will almost certainly be axed.

But equality of circumstance is a lot different than equality before the law. The curious state of our criminal justice system today is a function of the disparate impact principle. If you wonder why police officers are not making certain arrests, or why district attorneys are not prosecuting whole categories of crimes—such as shoplifting, trespassing, or farebeating—it is because apprehending lawbreakers and prosecuting crime have a disparate impact on black criminals. Urban leaders have decided that they would rather not enforce the law at all, no matter how constitutional that enforcement, than put more black criminals in jail.

Walgreens, CVS, and Target would rather close down entire stores and deprive their elderly customers of access to their medications than confront shoplifters and hand them over to the law, because doing so would disproportionately yield black shoplifters, as the viral looting videos attest. Macy’s flagship store in New York City was sued several years ago because most of the people its employees stopped for shoplifting were black. The only allowable explanation for that fact was that Macy’s was racist. It was not permissible to argue that Macy’s arrests mirrored the shoplifting population.

Even colorblind technology is racist. Speeding and red-light cameras disproportionately identify black drivers as traffic scofflaws. The solution to such disparate impact is the same as we saw with the medical licensing exam: throw out the cameras.

The result of this de-prosecution and de-policing has been widespread urban anarchy and, in 2020, the largest one-year spike in homicide in this nation’s history. Thousands more black lives have been lost to drive-by shootings. Dozens of black children have been fatally gunned down in their beds, in their front yards, and in their parents’ cars. No one says their names because their assailants were not police officers or white supremacists. They were other blacks.

(more from a Hilsdale lecture)