Disparate Impact Is a Legal Trick

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/

zerohedge
Economics , News , Politics , Science
December 7, 2024
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The Miserable Cost Of An Open Border

Authored by Seth Barron via RealClearPolitics,

The Biden-Harris experiment in dissolving the U.S. border has wrought massive changes to American society, most of which will not be understood for years, if not decades. Since 2021, U.S. border officials have had at least 10 million “encounters” with migrants, many of whom were allowed to enter the country. There is no telling how many more aliens entered the country without encountering enforcement agents. The population of the United States may have increased by as much as 15 million people in just a few years.

This massive flow of humanity crosses multiple national borders, involves every mode of transportation, accounts for billions of dollars paid in fees to smugglers, and describes a fantastically complex economy of suffering and hope. In an effort to get a handle on this human tide, noted muckraker James O’Keefe – known for his hidden camera “gotcha” interviews with abortionists, media executives, progressive nonprofit executives, and other degenerate types – traces the migrant onrush from its source, and seeks to trace the machinery of profit and influence that is conducting it from great removes.

“Line In The Sand,” the resulting documentary, is a remarkable and humane exposition, revealing perspectives and images American audiences have mostly been prevented from seeing. O’Keefe and his intrepid team begin on the U.S. side of the Mexican border, where we witness migrants crossing the border through holes that their guides have cut in a fence that serves as a target as much as a barrier. Infrared cameras show dozens of illegal aliens streaming toward “pick-up” vehicles on the U.S. side while smugglers – presumably cartel members – a few feet away taunt O’Keefe and his group. “What if I were to run up to them right now, what would happen?” O’Keefe asks his guide. “I would highly advise you against that,” he is told, in a classic understatement.

The fact that coyotes and other human traffickers are paid to assist northbound migrants with their passage is no scandal; we all know what their motivations are and why they are doing what they do. But O’Keefe documents multiple examples of U.S. Border Patrol agents standing idly by while illegal aliens cross, virtually under their noses. “Why aren’t you doing anything?” he asks. “Have a good day, guys,” a border agent desultorily responds before driving off in the general direction of the episode. Later, a migrant stands in front of a Border Patrol truck, clearly trying to alert the agents of his intention to surrender, but is studiously ignored until O’Keefe and his team call their attention to him.

There is a kind of sad comedy in the operations of U.S. border security, and O’Keefe is not unsympathetic to the absurd position that border agents have been put in. Trained to defend the national border and to serve as the first line of defense of American soil, these agents have been recommissioned as a perverse Welcome Wagon for illegal aliens, charged with making their undocumented and uninvited entrance to the United States as commodious as possible.

Looking to get deeper into the heart of this migratory avalanche, O’Keefe went deep into Mexico, to the city of Irapuato, about 150 miles northwest of Mexico City. Irapuato is a popular railway junction where thousands of migrants climb aboard “La Bestia,” or “The Beast,” a cargo train that chugs northward toward the United States. In the film’s most remarkable footage, O’Keefe and his team join with migrants, mostly from South and Central America, to ride The Beast, also known as “el Tren del Muerto,” or the Train of Death. O’Keefe talks to the migrants without condescension, asking them their destinations and what they plan to do when they get there, and their concerns about the perilous nature of the journey. We see the film crew race to jump on a moving train and clamber on top to sit in a pile of coal; O’Keefe is shocked at how truly dangerous this small element of the trip is and sympathizes with the migrants’ difficult choices. These scenes are among the film’s most affecting, along with the crew’s random encounter with a little girl who had just crossed the border after journeying from Guatemala by herself. There is a human dimension to illegal immigration, and O’Keefe does not ignore it.

However, there is also an impersonal dimension to this massive population transfer, and O’Keefe determinedly aims to uncover it – to put a face to the institutions and administrators that benefit from the rough injection of millions of people into American society. From government agents to bus companies to nonprofit resettlement groups to private contractors running huge, walled compounds housing thousands of children, O’Keefe doggedly tries to penetrate the mechanics of a system that resolutely hides itself behind a screen of silence, usually in the name of “safety” and “privacy.”

Some of the film’s more comical moments pertain to these segments, such as when the team follows some just-arrived Chinese migrants in San Diego to an employment agency, where other Chinese aliens, already in the country for several months, complain that it’s much harder to live in the United States than they had imagined. O’Keefe tries to sniff out a connection between the owner of the agency and more powerful actors, but it emerges that there really isn’t much going on; in fact, the owner asks O’Keefe if he knows of a way to apply for government grants.

Elsewhere, O’Keefe tries to get information about the operations of several huge residential centers for unaccompanied minors and tries to spin their refusal to give him access to the centers or submit to interviews as evidence of the existence of vast, government-funded child sex trafficking networks. But it seems more likely, though no less troubling, that the open borders policy of the last four years has created a tremendous humanitarian crisis of alien children roaming the continent by themselves, and the government is probably trying to keep them from becoming prey to sex traffickers while they sort out where to send them. Though O’Keefe does not uncover a salacious network of child predators, his vigorous pursuit of the truth does reveal the existence of a large, shadowy, government-funded, and lucrative system of child “welfare.”

So, “Line In The Sand” is correct in the larger sense that billions of dollars are being spent managing this human flow, and many people are getting rich off of it. The last thing these parasitical administrators of the nonprofit industrial complex want is for the border to close. O’Keefe does a great job of capturing in real time the corruption of a local New York City nonprofit called La Jornada, whose leader, Pedro Rodriguez, evidently perpetrates fraud, demanding fees for services that the city provides for free. O’Keefe also sends a Spanish-speaking reporter undercover into the Roosevelt Hotel, New York City’s main processing center for newly-arrived migrants, which offers him free housing, medical care, and even airplane tickets, even though the reporter explains that he has no identification of any sort. How, O’Keefe asks, in our post 9/11 security-obsessed era, are we to make sense of a system that admits millions of unvetted foreigners into the country, and then offers to fly them anywhere they care to go?

“Line In The Sand” is rough in parts, but intentionally so. Its subject is so sprawling and tangled that a neat and clean representation would be a lie. Even with a nine-figure budget – which this film assuredly did not have – a documentary about the border and the 30 million-footed human swarm that has crossed it would be messy and incomplete. But James O’Keefe and his small team have done something remarkable. They have taken on the decade’s biggest story, given it form, and preserved the humanity of its subjects. It is worth watching.

Seth Barron is a writer in New York and author of the forthcoming “Weaponized from Humanix.”

Tyler Durden
Sat, 12/07/2024 – 17:30