Eric Holder’s Disparate Impact Obsession

Elizabeth Price Foley Law Professor, Florida International University
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Attorney General Eric Holder purports to believe the Trayvon Martin case — in which a Hispanic man shot a young African-American man — illustrates a need to reduce police interactions with African-Americans. Citing Martin’s case, Holder announced on Monday that the Department of Justice will dole out millions of taxpayer dollars to collect and analyze data on police stops, searches and arrests. His goal? Tackling the “problem” of “overrepresentation of young men of color in our criminal justice system.” This is just another example of Holder’s quest to brand anything with a “disparate impact” on African-Americans as discriminatory.

The problem with Holder’s disparate impact obsession is that for multiple reasons having nothing to do with discrimination, the races do not engage in all behaviors at the same statistical rate. In the context of the criminal justice system, for example, African-Americans are undoubtedly stopped, searched and arrested at higher rates than whites, Hispanics or Asians. According to the FBI’s Uniform Crime Report (UCR), 28 percent of those arrested for violent crime are black, despite the fact that blacks comprise only thirteen percent of the population.

Does this suggest that blacks are being arrested disproportionately to the crimes they have committed? No. According to DOJ’s own National Crime Victimization Survey (NCVS), the victims of violent crime perceived their attackers as black 25 percent of the time. Importantly, this NCVS data does not include data for homicide, which the UCR indicates is committed by blacks in 52 percent of cases where the killer’s race is known.

Holder’s latest foray into the intellectual tar pit of disparate impact is an incredible waste of limited time and resources. So why does he bother? Because disparate impact is the cause du jour of the political left, which isn’t interested in achieving racial harmony but racial balancing. That’s why the Supreme Court’s recent decision in Schuette v. BAMN has provoked the left’s ire. In Schuette, Michiganians enacted a state constitutional amendment prohibiting the state from considering race in university admissions, hiring, or contracts. The amendment was an expression of colorblindness, and an overt rejection of race-conscious affirmative action policies. The Court upheld Michigan’s colorblind amendment, but its decision has sparked indignation by the political left, which believes that perpetual racial preferences are necessary to achieve a desired racial balance.

Spending millions to collect data about racial disparities in police encounters will further various leftist political goals, including challenges to police stop-and-frisk practices. Indeed, data showing differences between whites and blacks — in virtually any situation — can provide valuable ammunition for intimidation. Under Holder’s tenure, DOJ now spends an inordinate amount of time and effort attempting to identify practices for which racial statistical differences can be obtained. DOJ then alleges racial discrimination, using the statistics as a cudgel to beat private parties and states into behaving the way the Obama administration wants. It’s Chicago Way extortion, applied nationwide.

Holder’s DOJ has used disparate impact in a mind-boggling array of situations. It has filed lawsuits — and garnered settlements — against virtually every major bank in the nation, alleging that because banks lend money to a higher percentage of white than minority applicants, they are engaging in racial discrimination. It has sued private employers for using credit and background checks, claiming that because a higher percentage of blacks than whites have poor credit or criminal records, the checks are racially discriminatory.

It has challenged competency tests for workers such as firefighters and police officers, claiming that because more whites than blacks pass, the tests are discriminatory. It has sued states that provide private school vouchers, perversely asserting that because more black children use the vouchers to escape failing public schools, the state must be trying to make public schools “more white.” It has suggested that because laws limiting felons’ voting rights impact more blacks than whites, they are racially discriminatory. It has issued threatening “guidance” to public schools, asserting that because more black than white students are disciplined by school administrators, “racial discrimination in school discipline is a real problem.”

Holder’s distorted view — that mere statistical differences by race constitute intentional racial discrimination — is saddening for an administration elected, in large part, on promises of post-racial healing.  It proclaims that, lurking behind every test or practice that impacts blacks differently than whites, is just another, modern form of slavery or Jim Crow: a horrific desire to harm blacks because they are black. It ignores that racial differences are profoundly multi-factorial and often attributable to poverty, culture, historical disadvantage, or the disintegration of the family. It is these foundational problems — not the statistical differences themselves — upon which any sincere attempt at post-racial healing should focus.

For the Attorney General to prioritize pursuit of racial discrimination claims based on mere statistical racial differences isn’t merely a misguided use of taxpayer resources; it’s downright destructive of racial progress. As our nation’s chief law enforcement official, Holder has endorsed and prioritized a perverted view of “justice” for minorities, at the expense of justice for all.