Discrimination and the Problem with Disparate Impact Theory
Peter: First question: Disparate impact. The legal standard holding that statistical differences in outcomes among groups can be enough to establish illegal discrimination, even in the absence of evidence of intentional discrimination. That's the concept. Two quotations: One is you in your new book Discrimination and Disparities. Quote: "The disparate impact standard represents a major departure from American legal principles...where the burden of proof is usually on those making the accusation...." Peter: Close quote. Here's the second quotation. This is the Journalist Lauren Kirchner writing in the Atlantic. Get ready. "Attorneys have used...the concept of disparate impact to successfully challenge policies that have a discriminatory effect....It's been deployed in lawsuits involving employment decisions, housing, and credit....Over the past several decades disparate impact has represented an important tool for assessing and addressing discrimination...." -Lauren Kirchner, The Atlantic Peter: An important tool. Are you persuaded? Tom: I am. Lawyers have made millions doing this. Peter: (laughs) What about the notion that we need a disparate impact test because discrimination - particularly racial discrimination, particularly against African Americans - is so deeply embedded in the fabric of this country that people discriminate all the time without even being aware of it? Tom: If you're going with that assumption then you don't need the disparate impact theory. You just simply say what you've just said. To dress it up as a disparate impact theory, uh, the disparate impact theory depends upon the truth of the assumption. I might also add that whenever you look at theory you see this implicit assumption that all the groups are very similar in their capabilities, what they want to do and so forth. When you look at facts you find disparate impacts everywhere.
There was a story in the Wall Street Journal about the Irish. Well, you know, if you just go back to the 19th century and you take the Irish, the Italians and the Jews - just to take three European groups - something like 40% of all the Italian immigrants in the United States returned to Italy. The Irish and the Jews were not going back anywhere. They were glad they got out of what they got out of, and they stayed here.
If you look at things like politics, the Irish were so far advanced politically than either the Italians or Jews that, for generations, you had Irish politicians representing neighborhoods that were overwhelmingly Italian or Jewish. Everywhere you turn, my gosh, you find disparate impacts.
In the book I go even into nature. That, you don't find things happening randomly around the world. You find 90% of all the tornadoes in the entire world occurring in one country, namely the United States. And only part of the United States. You don't hear about tornadoes in Maine or in the pacific northwest. Think about how much land area there is in the world and 90% of them right at this one little place. Peter: So the large point here is that reality is lumpy and uneven and particular. Tom: Yeah. Peter: And it just doesn't fit the kind of bland, smooth reality that seems to be in the premise, the back of the theorist's mind. Tom: Yes. -Dr. Thomas Sowell and Peter Robinson @ Uncommon Knowledge, Hoover Institution, March 14, 2018 https://www.youtube.com/watch?v=U7hmTRT8tb4
