How Rand Paul could have attacked the 1964 Civil Rights Act without damaging himself

He could have done it the way that conventional conservatives attacked it for decades: as having given birth to an unjust, un-American system of racial preferences, as Mr. Zarkov discusses below. The tragedy is (as I wrote in my article on the Grutter decision), even conservatives have largely given up opposing racial preferences, which used to be a signature conservative cause.

A. Zarkov writes:

The Wall Street Journal article on Rand Paul does indeed present a confused hodgepodge with regard to the Civil rights Act of 1964, and the ancillary legislation it spawned. As pointed out by Mr. Auster, Title VII is the big problem, particularly Disparate Impact. In 1971 the U.S. Supreme Court handed down its decision in Griggs v. Duke Power. Later the court’s decision became part of the U.S. Code, see here. Like the 1942 Wickard v. Filburn decision, Griggs enables a vast increase in federal power. Few realize how much this law has changed the landscape of American employment. In a disparate impact case even an employer acting in good faith with no history of employment discrimination, bears the burden of proof. The employer must show either no disparate impact, or a business necessity for the practice in question. Griggs effectively eliminated IQ and aptitude testing for the hiring and promotion of employees. Even well-crafted employment tests for the hiring and promotion of firemen get challenged as we saw in New Haven (the Ricci case) and New York.

The New York City Fire Department (FDNY) exam provides a good example of how disparate impact cases go. In 1999, 90 percent of the white applicants passed the exam, but only 60 percent of the black. This runs afoul of the “four-fifths rule” which states that if a protected class (in this case blacks) scores less than 80 percent of the highest pass rate, then disparate impact is deemed to occur. In effect this means the test is held to be biased against the protected group. Since 80 percent of 90 percent is 72 percent. Blacks underscored on the test because 60 percent is less than 72 percent. In 2004 the city changed the test, making it so easy that 80 percent of black applicants passed. However this test was so easy 97 percent of the whites passed. In other words, the test is useless for white applicants. Why give the test if everyone passes? While the new FDNY test conformed to the four-fifths rule, that rule is only an approximate guideline. A statistical analysis is necessary for a definitive result, and the new test, easy as it was, still ran afoul of disparate impact. See Vulcan Society v. City of New York.

One should note that universities and other favored institutions are exempted from disparate impact. Look at the results of the California Bar exam for 2007 here. Blacks pass at roughly half the rate whites do. You need to pass the bar exam to practice law so the bar exam is certainly an employment exam. Does the California or any other bar get sued? Not a chance. They are exempt. In fact universities have benefited tremendously from Griggs. Employers simply use the university degree as an IQ test. This has led to a tremendous increase in student enrollment, and increases in faculty salaries. Now you see why academia like Griggs and disparate impact. Follow the money.

All Rand Paul had to do was to say that public accommodations laws are a done deal, and reasonable. It’s not too great a burden on a restaurant to have to serve all races. Then he could have launched into an attack on Title VII disparate impact. It’s stupid. It’s hard to defend. Always hit an enemy where he is weak. But Rand Paul doesn’t seem to understand all this because he’s basically a lightweight.

Posted by Lawrence Auster at May 25, 2010 12:13 PM | Send