At 2:00 p.m. on July 24, 2017, with Roger Clegg moderating, I will be presenting a Federalist Society teleforum titled “Are Existing Civil Rights Policies Based on a Statistical Understanding That Is the Opposite of Reality?” The subject concerns the fact that federal civil rights enforcement policies regarding lending, school discipline, criminal justice, voter qualifications, and employment have long been based on the belief that relaxing standards or otherwise reducing the frequency of some adverse outcome will tend to reduce (a) relative (percentage) racial and other demographic differences in rates of experiencing the outcome and (b) the proportions racial minorities and other groups more susceptible to the outcome make up of persons experiencing the outcome. In fact, reducing the frequency of an adverse outcome tends to increase, not reduce, both (a) and (b) as to the outcome.
In consequence of the government’s failure to understand this matter, entities covered by civil rights law that have acceded to government encouragements to relax standards have increased the chances that the government (or others) will sue them for discrimination. In the context of consent decrees and other agreements calling for reducing adverse outcomes in order to reduce (a) and (b), the more entities and individuals attempt to comply with their obligations to reduce the outcomes, the more likely they are to be faulted for failing to reduce (or for increasing) (a) and (b). [Read More]
In October 2016, the Supreme Court of Montana proposed the adoption of ABA Rule of Professional Conduct 8.4(g). That new rule, which the ABA adopted at its 2016 annual meeting, would make it professional misconduct for a lawyer to “engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status, or socioeconomic status in conduct related to the practice of law.” New comment (g)(4) defines conduct related to the practice of law to include “representing clients; interacting with witnesses, coworkers, court personnel, lawyers and others while engaged in the practice of law; operating or managing a law firm or law practice; and participating in bar association, business or social activities in connection with the practice of law.” [Read More]
On February 27, 2017, the New Jersey Assembly Law and Public Safety Committee reported favorably on Senate Bill No. 677 (with amendments). The original bill, passed by the New Jersey Senate in June 2016, required racial and ethnic impact statements for any legislative measure that affects pretrial detention, sentencing, probation, or parole policies concerning adults or children. The version recently reported out of committee somewhat expanded these requirements.
Racial impact statement laws have previously been enacted in Connecticut, Iowa, and Oregon, and similar legislation has recently been introduced by lawmakers in Arkansas, Florida, Mississippi, and Wisconsin. [Read More]
Our civil rights laws are designed to prohibit discrimination on the basis of certain traits. For example, Title VII of the Civil Rights Act of 1964 prohibits racial discrimination in employment. Title VI of that same Act prohibits any entity that receives federal funds from discriminating on the basis of race. And Title IX of the Education Amendments of 1972 prohibits discrimination on the basis of sex from any entity that receives federal funds. But what does it mean that these laws prohibit “discrimination?” [Read More]
Robert Driscoll has an outstanding post up at National Review Online titled “This is What a Trump Civil Rights Agenda Could Look Like.”
Like many libertarians and limited government conservatives, I had significant concerns about Trump’s temperament and fitness to lead. Nevertheless, Trump has been duly elected President, and all of us must hope that he governs wisely for the good of the country. With luck, he will surround himself with cool heads who will help him flesh out a pragmatic conservative governing agenda. Driscoll’s advice is very much in that vein. Nonetheless, I have some disagreements and a few thoughts of my own to add. [Read More]