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Tuesday, June 30, 2009

Time for the Supreme Court to Revisit Quotas, Affirmative Action and th 14th Amendment

Buried in the decision yesterday in Ricci, was this pronouncement by Justice Scalia that this case

merely postpones the evil day" on which the court must decide "whether, or to what extent," existing disparate-impact law conflicts with the 14th Amendment guarantee of equal protection under the law. Conceding that "the question is not an easy one

Disparate impact is defined as such.

Disparate impact is a legal phrase used in employment law to describe when a facially neutral practice that has an unjustified adverse impact on members of a protected class. Examples of practices that may be claimed to have a disparate impact include written tests, height and weight requirements, educational requirements, and subjective procedures, such as interviews.

The idea of disparate impact, quotas, and affirmative action itself all must be looked at by the Supreme Court to see if they violate the 14th amendment.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

In fact, the whole point of the 14th amendment is to rid our society of "protected classes". Yet, we continue with laws and practices in which women and minorities are given preferential treatment simply because of their race and sex.

That's in fact what disparate impact laws are. If a racially neutral practice happens to hurt one protected class, that practice can be outlawed even though the practice itself is not necessarily racial.

The 14th amendment guarantees equal treatment under the law, not equal outcomes. Yet, we continue to allow employers to hire people simply because their race or sex helps them meet quotas. We continue to allow universities to do similar things with admissions.

This is not without consequence. Try and get a job with the Chicago Public Schools if you are a white male. It's much more difficult than a female or a minority.

Yet, we continue to accept affirmative action, quotas, and so called disparate impact laws because all of these are supposed to address prior wrongs. Yet, the Constitution doesn't guarantee a right to make up for prior wrongs. It does, however, guarantee that everyone is treated equally under the law. All three of these practices fly in the face of that very simple concept in the 14th amendment. Hopefully, while the make up of the court is still favorable to such a ruling, the court will finally address this blatant violation of the Constitution.

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