One of the most destructive fallacies of critical race theory is its insistence that racial disparities are caused by discrimination. The CRT premise is that any gap in racial attainment calls for an explanation, and—in the absence of any convincing explanation—they are compelled to conclude that such gaps are caused by discrimination.
Many readers will be familiar with Thomas Sowell’s refutation of that argument. In arguing that disparities do not prove discrimination, Sowell challenges the premise that, in the absence of discrimination, we should expect all human beings to have equal life opportunities, experiences, and outcomes. In his book, Disparities and Discrimination Sowell “argues that there is an underlying assumption that if discrimination was absent equality would prevail, which historically has been proven wrong.” It is wrong to expect equal attainment from human beings—people have different skills, abilities, and talents, so we would have no reason to expect that, if they are all given an “equal” starting point, they would all exhibit uniform and equal levels of attainment.
The gap between black and white
The civil rights industry is founded on the debunked premise that disparities are prima facie evidence of discrimination. A large part of civil rights enforcement is now devoted to collecting statistics which will reveal attainment “gaps.” These gaps are then treated as presumptive evidence of discrimination which, at the very least, will merit an investigation from what Lew Rockwell called “the anti-discrimination police”—the Equal Employment Opportunity Commission and the Civil Rights Division of the Department of Justice.
Collecting data on race with a view to exposing attainment gaps is a well-funded industry. For example, in the context of educational attainment, the Department of Education Office for Civil Rights had a budget of $178 million in 2024. Civil rights activists feel this is not enough to monitor all the gaps, and are requesting that the budget should be doubled:
On behalf of The Leadership Conference on Civil and Human Rights, a coalition charged by its diverse membership of more than 240 national organizations to promote and protect the civil and human rights of all persons in the United States, and the 91 undersigned organizations, we urge you to double the funding for the U.S. Department of Education’s (“the department”) Office for Civil Rights (OCR) to $280 million in your FY2025 request to Congress. The Leadership Conference appreciated the $178 million requested for FY2024; however, this vital office, central to the function of the department as a whole, has been sorely underfunded for far too long.
The Civil Rights Data Collection office of the DOE aims “to ensure CRDC data is an accurate and comprehensive depiction of student access to educational opportunities.” They also collect “data on access to and enrollment in mathematics and science classes,” which can be used to demonstrate a racial “gap” in children’s “educational opportunities” in the sciences.
Making an effort preemptively to avoid having statistics that reflect a racial gap can help schools avoid costly investigations from the anti-discrimination police. This explains why, to avoid their statistics showing a racial gap in mathematics, some schools have decreed that in “antiracist math practice” there are no “correct” answers to mathematical problems. That way all the children’s sums can be marked by teachers as correct and voila—no statistical gap! By this means they propose to eradicate “inequity in math”:
Educators around the country have come out to condemn a ‘Dismantling Racism in Mathematics’ program which tells teachers not to push students to find the correct answers to math problems because doing so promotes white supremacy.
The program is centered around a workbook for teachers entitled ‘A Pathway to Equitable Math Instruction’ which asserts that America’s education system – even mathematics instruction – reinforces the dominant power structures of white colonizers.
Legal tricks and statistical chicanery
Attainment gaps incur legal penalties through what Rockwell terms “a legal trick,” or what M. Lester O’Shea terms “legal, statistical and verbal chicanery”—the concept of “disparate impact.” This concept was invented by the Supreme Court of the United States in Griggs v. Duke Power Co., 401 U.S. 424 (1971). According to the Civil Rights Division of the DOJ, the aim of this concept is to safeguard black people from “the repercussions of past discrimination”:
The disparate impact regulations seek to ensure that programs accepting federal money are not administered in a way that perpetuates the repercussions of past discrimination. As the Supreme Court has explained, even benignly-motivated policies that appear neutral on their face may be traceable to the nation’s long history of invidious race discrimination in employment, education, housing, and many other areas. See Griggs v. Duke Power Co., 401 U.S. 424, 430–31 (1971); City of Rome v. United States, 446 U.S. 156, 176–77 (1980); Gaston Cty. v. United States, 395 U.S. 285, 297 (1969).
Unlike the concept of disparate treatment, which relates to how public institutions treat racial minorities, the concept of disparate impact focuses entirely on the effect on the “victim.” As the DOJ adds, “In a disparate impact case, the investigation focuses on the consequences of the recipient’s practices, rather than the recipient’s intent.” This is why civil rights activists highlight the role of data in revealing the impact of educational policies on black students. Rather than examining the curriculum or school attendance records, they can just check the gap between white and black performance—the gap is treated as evidence that the “educational opportunities” are not “meaningful” and “Dr.” MLK-style dreams are then said not yet to be “actualized”:
OCR’s enforcement, policy, technical assistance, and data responsibilities have considerable impact on whether or not students’ access to equal educational opportunities are meaningful and whether the rights of marginalized students to receive the supports and opportunities they deserve to achieve their dreams are actualized.
The result of this trickery is that the civil rights framework does not require evidence of “discrimination” in the sense most people understand that term. It relies on statistical gaps. The government has transformed power conferred upon it to eradicate “discrimination” into a bureaucratic industry based on data showing statistical disparities between racial groups. The reason people do not object to this—despite Sowell’s work being widely known and despite cases of businesses driven to bankruptcy by racial discrimination claims based on nothing more than statistical chicanery—is that it is still socially unacceptable to be “racist.” Caldwell observes that, “The innovations of the 1960s had given progressives control over the most important levers of government, control that would endure for as long as the public was afraid of being called racist.”
Caldwell shows that declaring civil rights enforcement to be “unconstitutional,” far from resolving the dispute, merely restates the problem in different words. The problem is the contestation between the old de jure Constitution and the new de facto Civil Rights “constitution.” Constitutional lawfare is, therefore, not able to resolve the essential danger that was correctly identified by Lew Rockwell in 1995:
The Constitution has never stood in the way of civil rights enforcement. In the name of stamping out illegal discrimination, fundamental rights like freedom of association are denied daily… Politicians are promising to do something about it, but they have missed the larger point. Our troubles don’t stem from “quotas,” “set asides,” and the like; they stem from the presumption that government should be monitoring “discrimination” in the first place. Pass all the anti-quota laws you want. Until anti-discrimination law is repealed, nothing can block the march of big government.
Originally Posted at https://mises.org/