Stealth Hiring Quotas Via AI

24 Monday Oct 2022

Posted by Nuetzel in Discrimination, Diversity, Quotas, Uncategorized

Tags

AI, AI Bill of Rights, Algorithmic Bias, Algorithms, American Data Privacy and Protection Act, Artificial Intelligence, DEI, Disparate impact, Diversity Equity Inclusion, EEOC, Hiring Quotas, Machine Learning, Neural Networks, Protected Classes, Stealth Quotas, Stewart Baker, Volokh Conspiracy

Hiring quotas are of questionable legal status, but for several years, some large companies have been adopting quota-like “targets” under the banner of Diversity, Equity and Inclusion (DEI) initiatives. Many of these so-called targets apply to the placement of minority candidates into “leadership positions”, and some targets may apply more broadly. Explicit quotas have long been viewed negatively by the public. Quotas have also been proscribed under most circumstances by the Supreme Court, and the EEOC’s Compliance Manual still includes rigid limits on when the setting of minority hiring “goals” is permissible.

Yet large employers seem to prefer the legal risks posed by aggressive DEI policies to the risk of lawsuits by minority interests, unrest among minority employees and “woke” activists, and “disparate impact” inquiries by the EEOC. Now, as Stewart Baker writes in a post over at the Volokh Conspiracy, employers have a new way of improving — or even eliminating — the tradeoff they face between these risks: “stealth quotas” delivered via artificial intelligence (AI) decisioning tools.

Skynet Smiles

A few years ago I discussed the extensive use of algorithms to guide a range of decisions in “Behold Our Algorithmic Overlords“. There, I wrote:

“Imagine a world in which all the information you see is selected by algorithm. In addition, your success in the labor market is determined by algorithm. Your college admission and financial aid decisions are determined by algorithm. Credit applications are decisioned by algorithm. The prioritization you are assigned for various health care treatments is determined by algorithm. The list could go on and on, but many of these ‘use-cases’ are already happening to one extent or another.”

That post dealt primarily with the use of algorithms by large tech companies to suppress information and censor certain viewpoints, a danger still of great concern. However, the use of AI to impose de facto quotas in hiring is a phenomenon that will unequivocally reduce the efficiency of the labor market. But exactly how does this mechanism work to the satisfaction of employers?

Machine Learning

As Baker explains, AI algorithms are “trained” to find optimal solutions to problems via machine learning techniques, such as neural networks, applied to large data sets. These techniques are are not as straightforward as more traditional modeling approaches such as linear regression, which more readily lend themselves to intuitive interpretation of model results. Baker uses the example of lung x-rays showing varying degrees of abnormalities, which range from the appearance of obvious masses in the lungs to apparently clear lungs. Machine learning algorithms sometimes accurately predict the development of lung cancer in individuals based on clues that are completely non-obvious to expert evaluators. This, I believe, is a great application of the technology. It’s too bad that the intuition behind many such algorithmic decisions are often impossible to discern. And the application of AI decisioning to social problems is troubling, not least because it necessarily reduces the richness of individual qualities to a set of data points, and in many cases, defines individuals based on group membership.

When it comes to hiring decisions, an AI algorithm can be trained to select the “best” candidate for a position based on all encodable information available to the employer, but the selection might not align with a hiring manager’s expectations, and it might be impossible to explain the reasons for the choice to the manager. Still, giving the AI algorithm the benefit of the doubt, it would tend to make optimal candidate selections across reasonably large sets of similar, open positions.

Algorithmic Bias

A major issue with respect to these algorithms has been called “algorithmic bias”. Here, I limit the discussion to hiring decisions. Ironically, “bias” in this context is a rather slanted description, but what’s meant is that the algorithms tend to select fewer candidates from “protected classes” than their proportionate shares of the general population. This is more along the lines of so-called “disparate impact”, as opposed to “bias” in the statistical sense. Baker discusses the attacks this has provoked against algorithmic decision techniques. In fact, a privacy bill is pending before Congress containing provisions to address “AI bias” called the American Data Privacy and Protection Act (ADPPA). Baker is highly skeptical of claims regarding AI bias both because he believes they have little substance and because “bias” probably means that AIs sometimes make decisions that don’t please DEI activists. Baker elaborates on these developments:

“The ADPPA was embraced almost unanimously by Republicans as well as Democrats on the House energy and commerce committee; it has stalled a bit, but still stands the best chance of enactment of any privacy bill in a decade (its supporters hope to push it through in a lame-duck session). The second is part of the AI Bill of Rights released last week by the Biden White House.”

What the hell are the Republicans thinking? Whether or not it becomes a matter of law, misplaced concern about AI bias can be addressed in a practical sense by introducing the “right” constraints to the algorithm, such as a set of aggregate targets for hiring across pools of minority and non-minority job candidates. Then, the algorithm still optimizes, but the constraints impinge on the selections. The results are still “optimal”, but in a more restricted sense.

Stealth Quotas

As Baker says, these constrains on algorithmic tools would constitute a way of imposing quotas on hiring that employers won’t really have to explain to anyone. That’s because: 1) the decisioning rationale is so obtuse that it can’t readily be explained; and 2) the decisions are perceived as “fair” in the aggregate due to the absence of disparate impacts. As to #1, however, the vendors who create hiring algorithms, and specific details regarding algorithm development, might well be subject to regulatory scrutiny. In the end, the chief concern of these regulators is the absence of disparate impacts, which is cinched by #2.

About a month ago I posted about the EEOC’s outrageous and illegal enforcement of disparate impact liability. Should I welcome AI interventions because they’ll probably limit the number of enforcement actions against employers by the EEOC? After all, there is great benefit in avoiding as much of the rigamarole of regulatory challenges as possible. Nonetheless, as a constraint on hiring, quotas necessarily reduce productivity. By adopting quotas, either explicitly or via AI, the employer foregoes the opportunity to select the best candidate from the full population for a certain share of open positions, and instead limits the pool to narrow demographics.

Demographics are dynamic, and therefore stealth quotas must be dynamic to continue to meet the demands of zero disparate impact. But what happens as an increasing share of the population is of mixed race? Do all mixed race individuals receive protected status indefinitely, gaining preferences via algorithm? Does one’s protected status depend solely upon self-identification of racial, ethnic, or gender identity?

For that matter, do Asians receive hiring preferences? Sometimes they are excluded from so-called protected status because, as a minority, they have been “too successful”. Then, for example, there are issues such as the classification of Hispanics of European origin, who are likely to help fill quotas that are really intended for Hispanics of non-European descent.

Because self-identity has become so critical, quotas present massive opportunities for fraud. Furthermore, quotas often put minority candidates into positions at which they are less likely to be successful, with damaging long-term consequences to both the employer and the minority candidate. And of course there should remain deep concern about the way quotas violate the constitutional guarantee of equal protection to many job applicants.

The acceptance of AI hiring algorithms in the business community is likely to depend on the nature of the positions to be filled, especially when they require highly technical skills and/or the pool of candidates is limited. Of course, there can be tensions between hiring managers and human resources staff over issues like screening job candidates, but HR organizations are typically charged with spearheading DEI initiatives. They will be only too eager to adopt algorithmic selection and stealth quotas for many positions and will probably succeed, whether hiring departments like it or not.

The Death of Merit

Unfortunately, quotas are socially counter-productive, and they are not a good way around the dilemma posed by the EEOC’s aggressive enforcement of disparate impact liability. The latter can only be solved only when Congress acts to more precisely define the bounds of illegal discrimination in hiring. Meanwhile, stealth quotas cede control over important business decisions to external vendors selling algorithms that are often unfathomable. Quotas discard judgements as to relevant skills in favor of awarding jobs based on essentially superficial characteristics. This creates an unnecessary burden on producers, even if it goes unrecognized by those very firms and is self-inflicted. Even worse, once these algorithms and stealth quotas are in place, they are likely to become heavily regulated and manipulated in order to achieve political goals.

Baker sums up a most fundamental objection to quotas thusly:

“Most Americans recognize that there are large demographic disparities in our society, and they are willing to believe that discrimination has played a role in causing the differences. But addressing disparities with group remedies like quotas runs counter to a deep-seated belief that people are, and should be, judged as individuals. Put another way, given a choice between fairness to individuals and fairness on a group basis, Americans choose individual fairness. They condemn racism precisely for its refusal to treat people as individuals, and they resist remedies grounded in race or gender for the same reason.”

Quotas, and stealth quotas, substitute overt discrimination against individuals in non-protected classes, and sometimes against individuals in protected classes as well, for the imagined sin of a disparate impact that might occur when the best candidate is hired for a job. AI algorithms with protection against “algorithmic bias” don’t satisfy this objection. In fact, the lack of accountability inherent in this kind of hiring solution makes it far worse than the status quo.

Hiring Discrimination In the U.S., Canada, and Western Europe

10 Monday Oct 2022

Posted by Nuetzel in Discrimination

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Alex Tabarrok, Anti-Discrimination Laws, Ban the Box, Disparate impact, European Union, Hiring Discrimination, Protected Groups, Racial Proxies, Segregation, Slavery

Some people have the impression that the U.S. is uniquely bad in terms of racial, ethnic, gender, and other forms of discrimination. This misapprehension is almost as grossly in error as the belief held in some circles that the history of slavery is uniquely American, when in fact the practice has been so common historically, and throughout the world, as to be the rule rather than the exception.

This week, Alex Tabarrok shared some research I’d never seen on one kind of discriminatory behavior. In his post, “The US has Relatively Low Rates of Hiring Discrimination”, he cites the findings of a 2019 meta-study of “… 97 Field Experiments of Racial Discrimination in Hiring”. The research focused on several Western European countries, Canada, and the U.S. The experiments involved the use of “faux applicants” for actual job openings. Some studies used applications only and were randomized across different racial or ethnic cues for otherwise similar applicants. Other studies paired similar individuals of different racial or ethnic background for separate in-person interviews.

The authors found that hiring discrimination is fairly ubiquitous against non-white groups across employers in these countries. The authors were careful to note that the study did not address levels of hiring discrimination in countries outside the area of the study. They also disclaimed any implication about other forms of discrimination within the covered countries, such as bias in lending or housing.

The study’s point estimates indicated “ubiquitous hiring discrimination”, though not all the estimates were statistically significant. My apologies if the chart below is difficult to read. If so, try zooming in, clicking on it, or following the link to the study above.

Some of the largest point estimates were highly imprecise due to less coverage by individual studies. The impacted groups and severity varied across countries. Blacks suffered significant discrimination in the U.S., Canada, France, and Great Britain. For Hispanics, the only coverage was in the U. S. and sparsely in Canada. The point estimates showed discrimination in both counties, but it was (barely) significant only in the U.S. For Middle Eastern and North African (MENA) applicants, discrimination was severe in France, the Netherlands, Belgium, and Sweden. Asian applicants faced discrimination in France, Norway, Canada, and Great Britain.

Across all countries, the group suffering the least hiring discrimination was white immigrants, followed by Latin Americans / Hispanics (but only two countries were covered). Asians seemed to suffer the most discrimination, though not significantly more than Blacks (and less in the U.S. than in France, Norway, Canada, and Great Britain). Blacks and MENA applicants suffered a bit less than Asians from hiring discrimination, but again, not significantly less.

Comparing countries, the authors used U.S. hiring discrimination as a baseline, assigning a value of one. France had the most severe hiring discrimination and at a high level of significance. Sweden was next highest, but it was not significantly higher than in the U.S. Belgium, Canada, the Netherlands and Great Britain had higher point estimates of overall discrimination than the U. S., though none of those differences were significant. Employers in Norway were about as discriminatory as the U.S., and German employers were less discriminatory, though not significantly.

The upshot is that as a group, U.S. employers are generally at the low end of the spectrum in terms of discriminatory hiring. Again, the intent of this research was not to single out the selected countries. Rather, these countries were chosen because relevant studies were available. In fact, Tabarrok makes the following comment, which the authors probably wouldn’t endorse and is admittedly speculative, but I suspect it’s right:

“I would bet that discrimination rates would be much higher in Japan, China and Korea not to mention Indonesia, Iraq, Nigeria or the Congo. Understanding why discrimination is lower in Western capitalist democracies would reorient the literature in a very useful way.”

So the U.S. is not on the high-side of this set of Western countries in terms of discriminatory hiring practices. While discrimination against blacks and Hispanics in the U.S. appears to be a continuing phenomenon, overall hiring discrimination in the U.S. is, at worst, comparable to many European countries.

To anticipate one kind of response to this emphasis, the U.S. is not alone in its institutional efforts to reduce discrimination. In fact, the study’s authors say:

“A fairly similar set of antidiscrimination laws were adopted in North America and many Western European countries from the 1960s to the 1990s. In 2000, the European Union passed a series of race directives that mandated a range of antidiscrimination measures to be adopted by all member states, putting their legislative frameworks on racial discrimination on highly similar footing.”

Despite these similarities, there are a few institutional details that might have some bearing on the results. For example, France bans the recording and “formal discussion” of race and ethnicity during the hiring process. (However, photos are often included in job applications in European countries.) Does this indicate that reporting mandates and prohibiting certain questions reduce hiring discrimination? That might be suggestive, but the evidence is not as clear cut as the authors seem to believe. They cite one piece of conflicting literature on that point. Moreover, it does not explain why Great Britain had a greater (and highly significant) point estimate of discrimination against Asians, or why Canada and Norway were roughly equivalent to France on this basis. Nor does it explain why Sweden and Belgium did not differ from France significantly in terms of discrimination against MENA applicants. Or why Canada was not significantly different from France in terms of hiring discrimination against Blacks. Overall, discrimination in Sweden was not significantly less than in France. Still, at least based on the three applicant groups covered by studies of France, that country had the highest overall level of discrimination. France also had the most significant departure from the U.S., where recording the race and ethnicity of job applicants is institutionalized.

Germany had the lowest overall point estimates of hiring discrimination in the study. According to the authors, employers in German-speaking countries tend to collect a fairly thorough set of background information on job applications. This detail can actually work against discrimination in hiring. Tabarrok notes that so-called “ban the box” policies, or laws that prohibit employers from asking about an applicant’s criminal record, are known to result in greater racial disparities in hiring. The same is true of policies that threaten sanctions against the use of objective job qualifications which might have disparate impacts on “protected” groups. That’s because generalized proxies based on race are often adopted by hiring managers, consciously or subconsciously.

Discrimination in hiring based on race and ethnicity might actually be reasonable when a job entails sensitive interactions requiring high levels of trust with members of a minority community. This statement acknowledges that we do not live in a perfect world in which racial and ethnic differences are irrelevant. Still, aside from exceptions of that kind, overt hiring discrimination based on race or ethnicity is a negative social outcome. The conundrum we face is whether it is more or less negative than efforts to coerce nondiscrimination on those bases across a broad range of behaviors, most of which are nondiscriminatory to begin with, and when interventions often have perverse discriminatory effects. Policymakers and observers in the U.S. should maintain perspective. Discriminatory behavior persists in the U.S., especially against Blacks, but some of this discrimination is likely caused by prohibitions on objective tests of relevant job skills. And as the research discussed above shows, employers here appear to be a bit less discriminatory than those in most other Western democracies.

Ubiquitous Guilt: EEOC Disparate Impact Liability

22 Thursday Sep 2022

Posted by Nuetzel in Discrimination, Regulation

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Antonin Scalia, Automation, Bias, Business Necessity, Chevron Deference, Christopher Rufo, Civil Rights Act, Credit Checks, Criminal Background Checks, DEI, discrimination, Disparate impact, Due Process, EEOC, Employment Practices, Equal Protection, Four-Fifths Rule, Gail Heriot, Griggs v. Duke Power Co., Major Questions Doctrine, Non-Delegation Doctrine, Protected Groups, Separation of Powers, Stakeholder Capitalism, Strength Tests, Title VII, Warren Burger, Written Job Tests

A key part of the Civil Rights Act of 1964 was Title VII, which dealt with employment discrimination. Title VII applied only to intentional discrimination, but it didn’t take long for the Equal Employment Opportunity Commission (EEOC), the agency charged with administering Title VII, to find ways to expand the scope of its enforcement mandate under the law. The EEOC eventually managed to convince virtually all parties, including employers, employees, job applicants, attorneys, and even the courts, that the law prohibited employment practices having disparate impacts on groups protected from actual discrimination under the law. Predictably, this warped reinterpretation created severe distortions to the efficiency and fairness of labor market outcomes .

Another Rogue Agency

On the EEOC’s complete and erroneous reimagining of Title VII, Gail Heriot’s “Title VII Disparate Impact Liability Makes Almost Everything Presumptively Illegal” is a must read. Heriot is a Professor at the University of San Diego School of Law and is a member of the U.S. Commission on Civil Rights. This post attempts to summarize most of the important points in Heriot’s paper, so if you don’t have time for Heriot’s paper, read on. All errors are mine, of course!

Heriot provides an incredible case study on the dangers of regulatory overreach. She first discusses the EEOC’s blatant usurpation of Congressional power:

“It is hardly surprising that EEOC officials would undertake to publish answers to the questions they were hearing repeatedly…. But publishing such ‘guidances’ also had the potential to spin out of control. The temptation would always be to use them to establish what the EEOC staff wanted the law to be rather than what it was. Instead of interpreting Title VII in good faith, guidances would soon become quasi-legislation—disguised as interpretation, but in reality imposing new duties on employers not found in Title VII itself.

None of this should be surprising. It is in the nature of bureaucracy. It naturally seeks to expand its powers, often beginning by occupying niches that are otherwise unoccupied. Over time, a little power often becomes a lot of power. What is surprising is how upfront EEOC officials were about their tactics in accumulating that power.”

Having gone this far, one might be tempted to ask the EEOC what limiting principle they actually apply to determine whether various employment and hiring practices are permissible. Are level of education, industry experience, and tests of physical and cognitive faculties verboten? The answer that is there is no consistent, limiting principle. Instead, Heriot says the EEOC “picks its battles” (see below). She also describes the EEOC’s adoption of a so-called “four-fifths rule”, which is about as arbitrary as it gets. It means the EEOC will challenge an employment practice only if it leads to a selection of any protected group at a rate less than 80% of the most-selected group. That is, the “disparate impact” must be less than 20% to rule out a challenge. This rule appears nowhere in Title VII.

Job Qualifications? You’re Guilty!

Unfortunately, as Heriot takes pains to demonstrate, it’s virtually impossible to identify a hiring guideline or method of employee assessment that does not have a disparate impact. The examples she provides on pp. 34 – 37 of her paper, and on p. 40, are convincing. Furthermore, the EEOC’s “four-fifths” rule hardly narrows the potential for challenge at all.

“Selection rates of less than four-fifths relative to the group with the highest rate are extremely common. Just as everything or nearly everything has a disparate impact, everything or nearly everything has a selection rate that fails the ‘four fifths rule’ for some race, color, religion, sex, or national origin group.”

So the EEOC is allowed to operate with tremendous discretion. Again, Heriot says the agency “picks its battles”, focusing on challenges to screening tools like “written tests, physical strength and endurance tests, criminal background tests [sic], high school diploma requirements, personal credit histories, residency requirements, and a few others.”

This regulatory environment encourages employers to keep job requirements vague, sometimes to the point at which potential applicants might not be sure what the job qualifications really are, or exactly what the job function entails. One upshot is that this makes it harder to detect and prove actual discrimination, and it often leads to more arbitrary decisions by hiring managers, which may, in fact, involve real discrimination, including nepotism and/or cronyism.

Unbiased Intent Doesn’t Matter

Heriot points to a disastrous decision by the Supreme Court that, perhaps unintentionally, helped legitimize the concept of disparate impact as legal doctrine, and as a valid cause of action by plaintiffs against employers. In Griggs v. Duke Power Co. (1971), the Court rejected the premise that an employer’s innocence with respect to their intent to discriminate was an inadequate defense of an employment practice that had adverse consequences to a protected group. Heriot quotes the opinion of Chief Justice Warren Burger:

“… good intent or absence of discriminatory intent does not redeem…. Congress directed the thrust of the Act to the consequences of employment practices, not simply the motivation.”

It’s as if the Court convinced itself that adverse consequences prove actual discrimination, even when there is no intent to discriminate. The Court also emphasized that it’s decision was based on “general deference” to the EEOC! And this was years before the unfortunate Chevron Doctrine (judicial deference to administrative agencies on interpretation of law) was formally established by the Court. Heriot and others assert that the decision in Griggs would have astonished the authors of Title VII.

Heriot also discusses changes in the treatment of “business necessity” as a defense against complaints of disparate impact. It is generally the employer’s burden to show the “necessity” of a challenged hiring practice. “Necessity” was the subject of several Supreme Court decisions in the 1970s and 1980s, but the Court stopped short of requiring an employer to show that a practice was “essential”. In one case, the court shifted some of the burden back onto the plaintiff to show that a practiced lacked necessity. In 1990, there was concern in the Bush Administration and Congress that the difficulty of proving business necessity would eventually lead to the adoption of racial quotas by employers in order to prevent EEOC challenges, though the authors of Title VII had staunchly opposed quotas. While the original hope was that the Civil Rights Act of 1991 would resolve questions about “business necessity” and the burden of proof, it did not. Instead, it can be said that it legitimized disparate impact liability, with conditions. The standard for proving necessity, based on Court decisions, evolved to become more strict with time. There are cases in which courts seem to have left the EEOC to define “business necessity”, as if the EEOC would be in a better position to do that than the business itself!

Inviting Discrimination

Heriot devotes part of her paper to the perverse effects of disparate impact. When employers are faced with prohibitions or the threat of action against a certain practice, whether it be tests of aptitude, strength, or screening on criminal or credit records, they may abandon those devices and opt instead for “informal” proxies. The use of proxies, however, often leads to instances of actual discrimination, whether born of conscious or unconscious bias on the part of hiring managers.

Heriot provides a number of examples of the proxy phenomenon, some of which have been confirmed by empirical research. For example, an employer interviewing candidates for a job that requires math proficiency might reasonably use a test of math skill as a key criterion. If such a test is prohibited, the hiring manager might be tempted to hire an Asian candidate, since Asians have a reputation for good math skills. Similarly, an applicant of West European ancestry might be favored for a position requiring excellent grammar skills, absent the ability to explicitly test grammatical skill. Candidates for a job requiring a certain level of physical strength could be evaluated by various tests of strength, but barring that, a hiring manager might be inclined to hire based on gender.

When criminal background checks are prohibited, employers might be tempted to use proxies such as gender and race as a substitute. Likewise, if it’s forbidden to check a candidate’s credit record to gauge reliability, other proxies might lead to discrimination against members of protected classes. Needless to say, these kinds of outcomes are precisely the opposite of what the EEOC hopes to achieve.

As Heriot further notes, the outcomes can be much systematic and destructive than a bit of one-off discrimination in hiring, promotion, pay raises, or task assignment. These may inflict damage reaching well beyond having the wrong people gaining favorable labor market outcomes. For example, an employer might choose to relocate operations to a “safer” or more affluent community, barring an ability to perform criminal background or credit checks. Or businesses might decide to substitute capital for labor, given the interference in their attempts to identify the best job candidates. The difficulty in screening also creates an incentive to automate, just as premature automation is becoming more common with rising wage floors imposed by government.

Killing Jobs and Competition

Like many forms of regulation, however, large firms in less competitive industries are usually better positioned to survive EEOC scrutiny than smaller firms in competitive markets. Indeed, we often see large market players embrace regulation because it gives them a competitive advantage over smaller rivals. In this case, we see large firms adopting their own diversity, equity, and inclusion (DEI) goals. This is not solely related to the threat of EEOC challenges, however. Private lawsuits alleging discrimination or disparate impact are also a concern, as is pleasing activists inside and outside the company. Nevertheless, as Christopher Rufo reveals, there is growing push-back against the corporate DEI regime. Let’s hope it continues to gain traction.

Unconstitutional Executive Discretion

Heriot also dedicates part of her paper to constitutional issues related to the EEOC’s broad discretion in the application of disparate impact to employment practices. For one thing, disparate impact is a direct source of discrimination: when members of “protected groups” are awarded opportunities based on the possibility of disparate statistical outcomes, it means the majority candidates are denied those opportunities, no matter their qualifications. This is outright discrimination, and it’s instigation by a federal agency constitutes an explicit denial of equal protection under the law.

It should be no surprise that many consider disparate impact actions against employers to be denials of due process. Furthermore, when a federal agency like the EEOC exercises broad discretion, the so-called non-delegation doctrine should come into play. That is, the EEOC makes judgements on matters that are not necessarily authorized Congress. Thus, there are legitimate questions as to whether the EEOC’s discretion is a violation of the separation of powers. Granted, the courts have long deferred to administrative agencies in the interpretation of enabling statutes, but the Supreme Court has taken a new tack under Chief Justice Roberts. In some recent decisions, the Court has relied on a new “major questions” doctrine to place certain limits on executive discretion.

Conclusion

Hiring? Creating jobs? Better not get picky about checking your applicants’ skills and backgrounds or you risk liability for contributing to the statistical malaise of one, or of many, protected groups. That’s how it is under “disparate impact” rules imposed by the EEOC. The success of your business be damned!

Gail Heriot’s excellent paper details the way in which the EEOC transformed the meaning of its enabling legislation, expanding its reign over employment practices across the nation. She demonstrates the breadth of disparate impact rules with examples showing that virtually any attempt at systematic screening of job applicants can be held to be illegal. Your intent to hire the most qualified candidate without bias doesn’t matter, under an insane Supreme Court decision that buttressed the EEOC’s authority. As Heriot says, “… everything is presumptively illegal”. She also describes how disparate impact liability leads to employment decisions based on proxy criteria, which often lead to actual (even if unintended) discrimination. Further unintended consequences are the possibility of larger job losses in minority communities and less competition in product and labor markets. Finally, Heriot delineates several constitutional violations inherent in broad EEOC discretion and the enforcement of disparate impact.

One day a court challenge to the EEOC and disparate impact liability might rise to the level of the Supreme Court. Justice Antonin Scalia expected it, but it still hasn’t come before the Court. It should! Another way to do battle against the EEOC’s scourge is to challenge corporations who cow-tow to activists and to the EEOC with their own DEI initiatives. This manifestation of stakeholder capitalism is a cancer on the wealth and productivity of the U.S. economy, resting side-by-side with disparate impact liability.

Dobbs, Roe, and the Freakout Over Federalism

25 Wednesday May 2022

Posted by Nuetzel in Abortion, Federalism, Uncategorized

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Abortion, Adoption, Akhil Amar, Artificial Womb, Bill of Rights, Birth Control, CDC, Classism, Court Leak, dependency, Disparate impact, Dobbs v. Jackson Women’s Health Organization, Due Process Clause, Emergency Contraception, Equal Protection Clause, Establishment Clause, Eugene Volokh, Eugenics, Federalism, Fetal Homicide Laws, Fetal Rights, Fetal Viability, First Amendment, Fourteenth Amendment, Great Society, Josh Blackman, Judicial Activism, Later-Term Abortion, Margaret Sanger, Morning After Pill, Personhood, Planned Parenthood v. Casey, Privacy Rights, Pro-Life, racism, Roe v. Wade, Ruth Bader Ginsburg, Samuel Alito, Supreme Court, War Drugs, World Health Organization

The leak of a Supreme Court draft opinion in Dobbs v. Jackson Women’s Health Organization has created uproars on several fronts. The opinion, written by Justice Samuel Alito, represented a 5-4 majority at the time of its writing, but it is a draft opinion, and the substance and the positions of other justices might change before a final decision is handed down by the Court by the end of June. The draft would essentially uphold a Mississippi law restricting abortions after the first 15 weeks of pregnancy. This would overturn the Roe v. Wade (1973) and Planned Parenthood v. Casey (1992) decisions. The former established that states could regulate abortion only beyond a certain stage of pregnancy (originally the first trimester), while the latter allowed states to regulate once a pregnancy reached the stage of fetal viability. While 24 weeks is often cited as the lower limit of viability, it is considered to be as early as 20 weeks by the World Health Organization, an estimate that could decline with future advances in prenatal and neonatal care (such as artificial wombs). In any case, viability would no longer be the standard if the draft opinion stands. Indeed, it would once again be up to states as to how they wish to regulate abortion.

Here is an update on where things stood on May 11th. Reportedly, the 5-4 majority still stood, and no other draft opinions existed in the case at that time. No news since.

Due Process and Privacy Rights

Was Roe v. Wade a good legal decision? Ruth Bader Ginsburg did not hold the opinion in high regard as a matter of the jurisprudence. Apparently, she felt that the Court should have simply struck down the restrictive Texas law in question without imposing a set of rules, which amounted to an aggressive infringement on the legislative function and the evolution of law, and case law, at the state level. Her words were:

“Doctrinal limbs too swiftly shaped, experience teaches, may prove unstable. The most prominent example in recent decades is Roe v. Wade.”

She also felt the Court should not have leaned on the Due Process Clause of Fourteenth Amendment, which prohibits the denial of “life, liberty or property, without due process of law”. And she believed that relying on due process and the privacy rights of a woman and her physician made Roe vulnerable to challenge. She was probably right.

Yale Law School professor Akhil Amar, who is pro-choice, also believes the Roe decision was misguided and calls its reliance on due process “textual gibberish”. The objection to substantive due process is based on the absence of any principle establishing which “rights” not found explicitly in the Bill of Rights are valid, and which are not.

Equal Protection

In fact, Amar defends Justice Alito’s draft opinion and believes, as Ginsberg did, that the Equal Protection Clause of the Fourteenth Amendment is a better defense of abortion rights. The contention is that unless a woman possesses the right to terminate a pregnancy, she is not on an equal footing with similarly situated men in terms of self-determination and life opportunities. Of course, none of this weighs the interests of the unborn child.

Establishment Clause

Josh Blackman has an interesting series of comments about whether the Establishment Clause of the First Amendment may be a valid defense of abortion rights. That seemingly preposterous claim relies on abortion as a right, in some cases, protected by the free exercise of religion. As Blackman sums up in his sixth point:

“… abortion rights groups should be careful what they wish for. If the Court recognizes a Free Exercise right to perform or receive an abortion, then conservatives can cook up even more aggressive religious liberty strategies. I’ll bring the bagels for the next meeting of the Temple of Automatic Weapons.”

Eugene Volokh makes several interesting points on attempts to use the Establishment Clause “to obtain exemptions from generally applicable laws”. A separate, misguided take at the Establishment Clause is that a law must be unconstitutional if it was based on religious beliefs. Volokh handily disposes of that contention here.

Judicially-Prescribed Rights vs. Constitutional Rights

Blackman has written that the Alito draft is a tour de force, addressing many constitutional principles and concerns expressed by other justices. In another post, Blackman explains a very basic rationale for a decision to overturn Roe. It is related to the objections expressed by Ginsberg and Amar, and to the many “lamentations” expressed in the Court’s abortion opinions over the years since Roe. Namely, that rule and establishment of new rights by court decision was not a mechanism intended by the framers of the Constitution, but self-government and federalist principles were:

“It is a mistake to argue that Dobbs extinguishes a right, without also acknowledging that the decision would restore another right. Overruling Roe would extinguish a judicially-created right to abortion, but it would restore a very different right: the right of the people to govern themselves.”

Personhood

Of course, none of these points are really germane to the crux of the pro-life argument to which I subscribe. However, both Roe and Casey acknowledge the state’s interest in protecting the fetus beyond some point in a pregnancy. The closer to term, the greater the interest. The implication is that a fetus gradually takes on degrees of “personhood” through the course of gestation, and that rights attach to that nascent individual at some point. Both Roe and Casey, by allowing states to regulate abortion beyond some point, offer recognition that the closer an abortion occurs to full term, the stronger the case that it may be prohibited.

The law in most European nations carries the same implication, and if anything leans more heavily in favor of fetal rights than Roe. Furthermore, there are 38 states with fetal homicide laws, which treat the fetus as a person in the case of a murder of a pregnant woman. In 29 of those states, the law applies at the earliest stages of pregnancy. This suggests that in most states, sentiments may weigh in favor of treating the fetus as a person imbued with constitutional rights.

In the end, this is not an exclusively religious argument, as the pro-abortion Left always suggests. For me, it’s purely an ethical one. At what point beyond conception are pro-abortion activists willing to concede that a human life is at stake? Apparently a heartbeat is not enough to convince them. Neither does the appearance of small fingers and toes. Nor the ability to feel pain. These are all things that happen before the child is “viable”. But even viability is not enough for some of the more radical abortion activists, who are proposing choice right up to the moment of birth. Incredibly, and despite the real limitations imposed on mid- or late-term abortions in many states (in line with Roe and Casey), some pro-choice advocates are now acting as if overturning these cases causes women to lose such an unfettered right!

Practical Matters

Anyone can obtain a variety of birth control alternatives without a prescription (and often for free). This includes emergency contraception, or the “morning after pill”. Granted, sometimes birth control measures fail, which places the prospective mother (and perhaps an involved or conscientious father) in a difficult position. Nevertheless, careful use of birth control would minimize the abortion problem and obviate much of the debate, but people are often too impulsive or careless about sex.

Late term abortions are a fairly small percentage of all abortions. The CDC reported that in 2018, 50,000 (~8%) abortions occurred after the first trimester (14+ weeks), and 6,200 (1%) took place at or beyond the point of theoretical viability (21+ weeks). This study found that of abortions at 20+ weeks, mothers tended to be younger (20 -24), discovered their pregnancies somewhat later, faced logistical and financial delays in arranging the abortion, or faced other challenging life circumstances. However, the researchers rebut a common rationale for late-term abortion when they say:

“… most women seeking later terminations are not doing so for reasons of fetal anomaly or life endangerment.”

Eugenics and Classism

Pregnancies among black women are terminated at a disproportionately high rate. That’s consistent with the original, eugenicistic and racist goals of Planned Parenthood founder Margaret Sanger. This is an outcome to top all disparate impacts. I have witnessed pro-abortion activists counter that these aborted lives would have been miserable, impoverished, and without opportunity — essentially not worth living — but these are value judgements of the most monstrous kind. I’ve also heard the pathetic argument that fiscal conservatives should be happy that abortions will reduce spending on aid programs. Of course, the plight of the would-be mother is also emphasized by pro-abortion advocates, but we should not be so eager to accept the tradeoff here: abortion gets the mother is off the hook, but a child’s life is at stake. No matter the odds of success, human beings are all endowed with potential and opportunity, and it’s not necessary to be economically secure to be happy or pursue dreams.

It’s easy to be pessimistic that public policy can ever mitigate the economic burden on impoverished women who bring unexpected or unwanted pregnancies to term, or to brighten the economic future of their children. After all, over the decades since the Great Society program was conceived, the welfare state has proven no better than a dependency treadmill. Family structure has been decimated by those programs and the destructive consequences of the failed (but ongoing) war on drugs. Likewise, public education is a disaster. However, there are also alternatives such as adoption, and there are many private individuals and organizations working to encourage prospective mothers and ease those burdens.

The Leak

The leak of the draft opinion in Dobbs is unfortunate as it compromises the ongoing integrity of the Court’s internal debates and proceedings. In addition to this institutional damage, the impropriety of staging protests outside the homes of justices and inside places of worship should be roundly condemned by people with respect for judicial integrity, privacy and free exercise. These protests are partly attempts to intimidate, and they have even been accompanied by threats of violence. The belligerent posture of these activists is unconscionable.

Long Live Federalism

Again, the Court’s final decision in Dobbs might not be the opinion in the leaked draft. However, if the Court does indeed overturn Roe, it would not outlaw abortion. Rather, it would allow voters in each state to have a voice in aligning the law with public sentiment. Some states will have more restrictive abortion laws than others, but even the Mississippi law at issue in Dobbs allows abortion up through week 15, almost two weeks longer than the original Roe limitation.

The country is still deeply divided on the issue of abortion. Fundamentally, a broader acceptance of the life-and-death reality of abortion would help bring more consensus on the issue. One theory I have is that many who oppose overturning Roe would simply rather not think about that reality. In their minds, Roe keeps abortion compartmentalized, safely walled off from conscience and sometimes even spiritual convictions. They rationalize Roe based on their inability to observe the person whose life is at stake, and they accept justifications that minimize the value of that life.

A single rule imposed by the Court has not and will not resolve these differences. Indeed, Roe and Casey were failed acts of judicial activism that should be reversed. While bad legislation is regrettable, it is always subject to review and challenge by the people. In a federalist system, a bad law is contained like a single experimental treatment in a large trial with multiple arms. However, in this case, unlike a trial with random selection of subjects, one treatment group may differ from others in important respects, and the objective is not to identify one single-best solution, but different solutions that work best for different groups. That is a closer approximation to real self-government than federal legislation and especially one-size-fits-all Court rule-making.

Every Gentleman Best Heed the Power of Hysterics To Censor

19 Saturday Feb 2022

Posted by Nuetzel in Censorship, Gender Differences, Uncategorized

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Abortion, Antifa, BLM, Bullying, Center for the Study of Partisanship and Ideology, Civil Rights Law, Critical Race Theory, Dark Triad, Defense Priorities, Disparate impact, Equal Pay, Eric Landers, Family Leave Mandates, Feminization, First Amendment, Gender Conventions, Gender Studies, Georgetown Law School, Grievance Studies, Harrassment, Hate Speech, Human Resources, Ilya Shapiro, Joe Biden, Minimum Wage, Noah Carl, Racial Quotas, racism, Richard Hanania, Sexism, Virtuous Victimhood, Yale Halloween

Here are the gender conventions we’ve adopted in Western society on the rules of debate:

“We accept gender double standards, and tolerate more aggression towards men than we do towards women. We also tolerate more hyper-emotionalism from women than men.”

So says Richard Hanania in an essay called “Women’s Tears Win In the Marketplace of Ideas“. Hanania is the president of the Center for the Study of Partisanship and Ideology, and a research fellow at Defense Priorities. He offers some cogent examples of this disparate treatment, such as the Yale Halloween costume imbroglio and the “cancelling” of Ilya Shapiro at Georgetown Law School. To those we can add Eric Landers’ forced withdrawal as Joe Biden’s chief science advisor, and there are countless others. About this, Hanania says:

“What makes these cases difficult is that male versus male argumentation just has completely different rules, norms, and expectations than male versus female. … A man can’t just yell in another man’s face for 5 or 10 minutes about how he’s hurting his feelings. If a man does behave this way, bystanders are more likely to feel disgusted than join in or play the role of white knight. The man at the receiving end of the abuse is at some point going to have to escalate towards violence, or back down and say something about how this is beneath him. Depending on the situation, observers may assume violence is a distinct possibility, and get between the two sides.

None of these options are available when getting yelled at by a woman. You certainly can’t make an implicit threat of violence. Raising your voice will turn everyone against you, and even walking away can look heartless.”

I’ve witnessed a few pathetic crying jags in the workplace myself, as well as some volleys of verbal belligerence from females on social media that were pointedly anti-social. In my experience, most women can dish out barbs good-naturedly in jest and conduct themselves with dignity in debate. On the other hand, there are too many men who become hostile in debate, which most observers will find much less sympathetic if the counter-party is a woman. And there are a few men, here and there, who have trouble holding back tears in a fraught exchange, but we all know it’s not a good look.

To state the obvious, tears are a natural reaction to grief or real hurt. Anger is well-justified in response to criminal or personal wrongs. Nevertheless, it’s necessary to distinguish between these kinds of reactions and the ignoble tears or venom sometimes brought to controversial debates by neurotic partisans. As Hanania says of our disparate gender conventions, considerable censorship is instigated by an intransigent minority of women who manage to “… indulge their passions in ways that men cannot … .” Most men, anyway… and if they do, they’ve usually lost and know it.

These passionate displays are often tied to claims of individual or group victimhood. The objector could be anyone who feels an under-appreciated beef, but acting-out in order to signal “virtuous victimhood” in this way might indicate a deeper instability.

Again, as Hanania says, females have a definite advantage in the deployment of tears, confrontational rhetoric, and screams. Coincidentally, in a post to which Hanania links, Noah Carl marshals data on the extremely skewed representation of degrees awarded to women in Grievance Studies (e.g. Gender Studies and Critical Race Theory).

Too often, claims of victimhood are invoked in attempts to rebut any number of principled policy positions. For example, your views might be construed as offensive, racist, or sexist if you oppose such things as an increase in the minimum wage, racial quotas, disparate impact actions, equal pay rules, family leave mandates, and abortion. Expressing a strong and reasoned defense of many positions can foment imagined micro-aggressions or even harassment.

The real danger here is that honest debate is suppressed, and with it, very often, the truth. I acknowledge that people must be free to express or defend their views passionately, and with tears, screams, or otherwise, which the First Amendment guarantees. Our gender conventions in this matter should be revisited, however, if men and women are truly to be on equal footing.

Whether baring fangs or shedding tears, there are self-appointed arbiters of acceptable speech represented in almost all of our public and private institutions, ready to shut down debate on account of their feelings. They have more than a few sympathetic allies, male and female, at higher levels of their organizations. In the past, Hanania has discussed the over-representation of females in Human Resource departments. In these contexts, adjudication of disputes often relies on vague notions of what constitutes “hate speech” or “harassment” under Civil Rights Law. If you manage to provoke the tears of a colleague or underling, you’re probably behind the eight ball!

Hanania considers some alternative ground rules or “options” for debate:

Expect everyone who participates in the marketplace of ideas to abide by male standards, meaning you accept some level of abrasiveness and hurt feelings as the price of entry.
Expect everyone to abide by female standards, meaning we care less about truth and prioritize the emotional and mental well-being of participants in debates.”

Either of these options is better than the double standard we have now, and Hanania point to a number of egregious manifestations of our double standard. As he notes, #2 might be what’s meant by the “feminization of intellectual life”, but it fosters the arbitrary prohibition against discussion of any number of ideas that belong on the policy menu.

Option #1 would undoubtedly be condemned as “traditional male dominance” of public debate, but it would bar no one from participation, and obstacles perceived by females, or any sensitive soul, can be viewed as a matter of socialization. Both tearful and ferocious argumentation should be marginalized regardless of the antagonist’s gender.

Imperfect as they are, we have laws and/or social strictures against harassment, bullying, and other aggressive behavior thought to be largely associated with malcontented males. But as Hanania says:

“We haven’t even begun to think carefully about equivalent pathologies stemming from traits of the other sex.”

This problem obviously pales in comparison to the fascist tactics typical of the far Left. That includes the violent behavior of Antifa and BLM, unethical attempts blame conservatives for various, often fabricated deeds, and to threaten and punish them economically, even to the point of state-sponsored thievery and threats of harm to family members. Despite the more benign nature of the disparities discussed here, restoring gender equality to the terms of civil debate, without tears and hysterics, would be a great step forward.

Green Climate Policy Wreaks Poverty

03 Friday Sep 2021

Posted by Nuetzel in Climate science, Environmental Fascism

≈ 6 Comments

Tags

Assessment Report #6, Carbon Emissions, Cooling the Past, Deforestation, Democratic Republic of Congo, Diablo Canyon, Disparate impact, Economic Development, Energy Poverty, Fossil fuels, Hügo Krüger, Intergovernmental Panel on Climate Change, IPCC, Jennifer Marohasy, Jim Crow Environmentalism, Joel Kotkin, Judith Curry, Michael Schellenberger, Natural Gas, Net Zero Carbon, Nuclear power, Rare Earth Minerals, Regressive Policy, Remodeled Temperatures, Renewable energy, Steve Koonin

Have no doubt: climate change warriors are at battle with humanity itself, ostensibly on behalf of the natural world. They would have us believe that their efforts to eliminate the use of fossil fuels are necessary to keep our planet from becoming a blazing hothouse. However, the global temperature changes we’ve witnessed over the past 150 years, based on the latest Assessment Report (AR6) from the Intergovernmental Panel on Climate Change (IPCC), are well within the range of historical variation.

“Remodeled” History

Jennifer Marohasy posted an informative discussion of the IPCC’s conclusions last month, putting them into a broader climatological context and focusing in particular on measurement issues. In short, discussing “global” temperatures with any exactitude is something of a sham. Moreover, the local temperature series upon which the global calculations are based have been “remodeled.” They are not direct observations. I don’t think it’s too crude to say they’ve been manipulated because the changed records are almost always in one direction: to “cool” the past.

Judith Curry is succinct in her criticism of the approach to climate change adopted by alarmist policymakers and many climate researchers:

“In a nutshell, we’ve vastly oversimplified both the problem and its solutions. The complexity, uncertainty, and ambiguity of the existing knowledge about climate change is being kept away from the policy and public debate. The solutions that have been proposed are technologically and politically infeasible on a global scale.”

We need a little more honesty!

The Real Victims

I want to focus here on some of the likely casualties of the war on fossil fuels. Those are, without a doubt, the world’s poor, who are being consigned by climate activists to a future of abject suffering. Joel Kotkin and Hügo Krüger are spot-on in their recent piece on the inhumane implications of anti-carbon ideology.

Energy-poor areas of the world are now denied avenues through which to enhance their peoples’ well being. Attempts to fund fossil-fuel power projects are regularly stymied by western governments and financial institutions in the interests of staving off political backlash from greens. Meanwhile, far more prosperous nations power their economies with traditional carbon-based energy sources. Most conspicuously, China continues to fuel its rapid growth with coal and other fossil fuels, getting little pushback from climate activists. If you’re wondering how the composition of energy output has evolved, this time-lapse chart is a pretty good guide.

One of the most incredible aspects of this situation is how nuclear energy has been spurned, despite its status as a proven and safe solution to carbon-free power. This excellent thread by Michael Schellenberger covers the object lesson in bad public policy offered by the proposed closing of the Diablo Canyon nuclear plant in California.

In both the U.S. and other parts of the world, as Kotkin and Krüger note, it is not just the high up-front costs that lead to the rejection of these nuclear projects. The green lobby and renewable energy interests are now so powerful that nuclear energy is hardly considered. Much the same is true of low-carbon natural gas:

“Sadly, the combination of virtue-signaling companies and directives shaped by green activists in rich countries – often based on wildly exaggerated projections, notes former Barack Obama advisor Steve Koonin – make such a gradual, technically feasible transition all but impossible. Instead, it is becoming increasingly unlikely that developing countries will be able to tap even their own gas.”

Energy is the lifeblood of every economy. Inadequate power creates obstacles to almost any form of production and renders some kinds of production impossible. And ironically, the environmental consequences of “energy poverty” are dire. Many under-developed economies are largely dependent on deforestation for energy. Without a reliable power grid and cheap energy, consumers must burn open fires in their homes for heat and cooking, a practice responsible for 50% of child pneumonia deaths worldwide, according to Kotkin and Krüger.

Green Environmental Degradation

Typically, under-developed countries are reliant on the extraction of natural resources demanded by the developed world:

“The shift to renewables in the West, for example, has increased focus on developing countries as prime sources for critical metals – copper, lithium, and rare-earth minerals, in particular – that could lead to the devastation of much of the remaining natural and agricultural landscape. … Lithium has led to the depletion of water resources in Latin America and the further entrenchment of child labor in the Democratic Republic of the Congoas the search for cobalt continues.”

Unfortunately, the damage is not solely due to dependence on resource extraction:

“The western greens, albeit unintentionally, are essentially turning the Third World into the place they send their dirty work. Already, notes environmental author Mike Shellenberger, Africans are stuck with loads of discarded, highly toxic solar panels that expose both the legions of rag-pickers and the land itself to environmental degradation – all in the name of environmentalism.”

Battering the Poor In the West

Again, wealthy countries are in far better shape to handle the sacrifices required by the climate calamitists, but it still won’t be easy. In fact, lower economic strata will suffer far more than technocrats, managers, and political elites. The environmental left leans on the insidious lever of energy costs in order to reduce demand, but making energy more costly takes a far larger bite out of the budgets of the poor. In another recent piece, “Jim Crow Returns to California,” Kotkin discusses the disparate impact these energy policies have on minorities.

“This surge in prices derives from the state’s obsession — shared by the ruling tech oligarchs — with renewable energy and the elimination of fossil fuels. Yet as a recent Massachusetts Institute of Technology (MIT) report has shown, over-reliance on renewables is costly, because it requires the production of massive (and environmentally unfriendly) battery-storage capacity — the price of which is invariably passed on to the taxpayer.

This is not bad news for the tech oligarchs, who have been prominent among those profiting from ‘clean energy’ investments. But many other Californians, primarily those in the less temperate interior, find themselves falling into energy poverty or are dependent on state subsidies that raise electricity prices for businesses and the middle class. Black and Latino households are already forced to pay from 20 to 43% more of their household incomes on energy than white households. Last year, more than 4 million households in California (30% of the total) experienced energy poverty.”

Kotkin touches on other consequences of these misguided policies to minority and non-minority working people. In addition to jobs lost in the energy sector, a wide variety of wage earners will suffer as their employers attempt to deal with escalating energy costs. The immediate effects are bad enough, but in the long-run the greens’ plans would scale back the economy’s productive machinery in order to eliminate carbon emissions — net zero means real incomes will decline!

Energy costs have a broad impact on consumer’s budgets. Almost every product imaginable is dependent on energy, and consumer prices will reflect the higher costs. In addition, the “green” effort to curtail development everywhere except in high-density transit corridors inflates the cost of housing, inflicting more damage on workers’ standards of living.

Tighten Your Belts

These problems won’t be confined to California if environmental leftists get their version of justice. Be prepared for economic stagnation for the world’s poor and a sharply reduced standard of living in the developed world, but quite unnecessarily. We’ll all pay in the long run, but the poor will pay much more in relative terms.

The Left Always Hurts the Ones They “Love”

28 Monday Jun 2021

Posted by Nuetzel in law enforcement, Leftism, Lockdowns

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Defund the Police, Disparate impact, Family Instability, George Floyd, Gun Control, Leftism, Lockdown Orders, Marxism, Non-Pharmaceutical interventions, Police Bias, Police Homicides, Regressive Policy, Rent Controls, School Discipline, Shelter at Home, Unintended Consequences, Wage Floors, Welfare State, Work Disincentives

The policies foisted upon the country by the Left always hurt those constituencies they think they’ll help, and they backfire in very predictable ways. There are too many instances of that truism to recount, but just a couple of examples follow.

Economic Perils of Precaution

We can start with the interminable non-pharmaceutical interventions (NPIs) imposed in many states during the pandemic. These included shelter-at-home orders, limits on public gatherings, school closures, and the like. These lockdown measures were more severe in so-called blue states controlled by the Democrat Party. But NPIs were a policy failure and did little to stem the pandemic or excess deaths. Moreover, they resulted in the closure of many businesses and massive job losses. The economic burden fell especially hard on low wage earners, as the following chart shows:

For high earners (the red line), the employment decline at the start of the pandemic was small and relatively brief. Less fortunate were those earning under $27,000 annually (the blue line). They suffered a much larger initial decline in employment and had a continuing loss of almost 24% of jobs. While those who lost jobs ultimately received enhanced unemployment compensation and other benefits, the idleness and loss of work experience inflicted long-term damage to health, psyches, and future prospects. Thus, the party with pretensions of championing the cause of the downtrodden was pleased to intervene with policies that undercut the working poor.

But Some Precautions Are “Racist”

Another prominent case in which leftists have harmed those for whom they claim to advocate is the effort to “defund the police”. Low income and minority populations do not favor such a policy because they understand the value of protection against criminal elements who victimize their communities. The residents of these communities are most at risk from gangland violence and homicide. Furthermore, nearly all “victims” of police homicides are armed, and police homicides are closely associated with crime. And again, the sad fact is that crime is heavily concentrated in minority neighborhoods. The statistics do not support assertions of bias in policing. Obviously, these citizens have taken notice that the riots cheered on by the Left have been destructive to their communities.

Crime has spiked in Minneapolis and elsewhere since last summer, when George Floyd’s death sparked interest in the “defund the police” mantra promoted by the Left. And there followed a reduction in police budgets of about 5.2% in aggregate in the 50 largest cities in the country (though not all of these cities made cuts). Moreover, the effectiveness of policing has been undercut more broadly by the substantial legal risk now facing officers who earnestly attempt to enforce the law, as well as more restrictive use-of-force policies.

These changes are an unambiguous disaster for so many good people having the misfortune to live in high-crime areas. And the political disaster is starting to sink in among Democrats, who are already attempting to change the narrative (and see here). It’s pretty transparent that the “black lives matter” dialectic appeals to Democrats primarily as a selling point of convenience, and not so much when there’s actual blood in the streets.

Only the Obvious Matters

Destructive lockdowns and efforts to “defund the police” are just two examples of a perverse phenomenon. It’s well known to keen observers of the history of Marxism in action that it usually victimizes its presumed beneficiaries. That dynamic is at play under school discipline policies that seek to avoid “disparate impacts” on minority students, leaving other minority school children in disruptive learning environments; gun control initiatives making it difficult for minority residents and businesses to protect themselves; rent controls leading to a deteriorating stock of low-cost housing; wage floors causing low-skilled workers to lose hours, benefits, and jobs; energy policies with regressive impacts on household budgets; tax policies destroying incentives for job creation; and a welfare state creating disincentives to work and promoting family instability. This list goes on and on.

The difficulty leftists have in coming to grips with these unintended consequences is that they can’t see past first-order effects. Like spoiled children, they grasp only the ostensible benefits of their demands. And like bad parents, they behave as if to seek approval of the most spoiled among their presumed charges.

The Anti-CRT Revolt: Banning a Racist Curriculum

16 Wednesday Jun 2021

Posted by Nuetzel in Critical Race Theory, Education, racism, Uncategorized

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1619 Project, Black Lives Matter, Critical Race Theory, Disparate impact, Food Deserts, Jim Crow, Living Wage, New York Times, racism, Systemic Racism, Unconscious Bias, Zinn Education Project

Suddenly it’s dawned on many people of good faith that our educational, business, and other institutions have been commandeered by adherents to critical race theory (CRT), which teaches that all social interactions and outcomes must be viewed through the lens of racial identity and exploitation. In fact, it teaches that racism is endemic, whether conscious or unconscious, among people deemed to have privilege. They are labeled as oppressors, especially anyone with white skin. Furthermore, CRT holds that racism is systemic, and therefore the “system”, meaning all of our institutions and social arrangements, must be radically transformed. Some or all of these tenets are taught to our children in public and private schools, and they are embedded in anti-bias and diversity training delivered to employees of government, non-profits, and private companies.

Standing Up To It

It’s easy to see why many have come to view CRT as a racist philosophy in its own right. Teaching children that they are either “oppressors” or “victims” based on the color of their skin, is a deeply flawed and dangerous practice. The revelation of CRT’s cultural inroads has prompted an angry counter-revolution by parents who hope to purge CRT from the curricula in their children’s schools… schools that they PAY FOR as taxpayers. Many other fair-minded people are offended by the sweeping racism and identity politics inherent in CRT. And yet its proponents continue in attempts to gaslight the public. More on that below.

The groundswell of opposition to CRT is evident in explosive meetings of school boards across the country, as well as recent school board elections in which slates of candidates opposed to the teaching of CRT have been victorious (see here, here, and here).

In addition, we’ve seen a number of recent legislative or administrative initiatives at the state level. There are now, or recently have been, efforts in 22 states to ban or restrict the instruction of CRT. In some cases, institutions found to be in violation of the new laws are subject to deadlines to remedy the situation. Otherwise, funding dispersed by their state’s Department of Education may be cut by ten percent, for example.

But It’s Speech

As happy as I am to witness the pushback, it’s fair to ask whether the most severe restrictions are reasonable from an educational point of view. For example, as a social philosophy, and as wrong-headed as I believe it to be, there is no reason CRT can’t be discussed alongside other social philosophies, failed and otherwise, without endorsement. For that matter, we should not insist that schools shield children from the fact that racism exists, and CRT certainly has its place along the spectrum of racism.

For my own part, I believe elective classes covering CRT as one philosophical position among others should be defended, as should instruction in the history of American slavery and Jim Crow laws, for example. However, mandatory training in CRT is unacceptable and, to the extent that students or employees are required to accept its tenets, it constitutes compelled speech. To the extent that certain groups of students are identified as inherently biased, it is a form of defamation and a personal attack.

Legislation

Some states are attempting to ban CRT outright. Others have imposed strictures on certain messages arising from the CRT curriculum. The Florida Department of Education just passed an extremely brief rule stating:

“Instruction on the required topics must be factual and objective, and may not suppress or distort significant historical events, such as the Holocaust, and may not define American history as something other than the creation of a new nation based largely on universal principles stated in the Declaration of Independence.”

The Florida rule prohibits teaching the 1619 Project as part of the history curriculum. This revised “history” of our nation’s founding was sponsored by the New York Times. It insists that the Revolutionary War was fought to preserve American slavery, an assertion that has been condemned as false by many historians (see here and here), though the Left still desperately clings to it. I have no problem with a prohibition on false histories, though again, it’s important for students to learn that slavery was the subject of much debate at the nation’s founding and that it persisted beyond that time. No one kept those facts from us when I was a child. And they didn’t brand white students as oppressors.

While a rulemaking by a state Department of Education is better than nothing, it’s a far cry from an actual piece of legislation. A bill signed into law in Idaho in late March contained substantially the same provisions as the rule promulgated in Florida, but it didn’t proscribe the 1619 Project. The same is true of the bill signed into law in Oklahoma in early May.

In Texas, the state senate passed a bill in May that would ban instruction in any public school or state agency of any of the following:

“… one race or sex is inherently superior to another race or sex

an individual, by virtue of his or her race or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously;

an individual, by virtue of his or her race or sex, bears responsibility for actions committed in the past by other members of the same race or sex;

meritocracy or traits such as a hard work ethic are racist or sexist, or were created by … members of a particular race to oppress members of another race.”

A new law in Iowa and abill signed by the governor of Tennessee in late May contained similar provisions, essentially banning instruction of some highly objectionable tenets of CRT. However, the Iowa and Tennessee laws are careful to spell out what the law should not be construed to do. For example, these laws do not:

“—Inhibit or violate the first amendment rights of students or faculty, or undermine a school district’s duty to protect to the fullest degree intellectual freedom and free expression.
—Prohibit discussing specific defined concepts as part of a larger course of academic instruction.
—Prohibit the use of curriculum that teaches the topics of sexism, slavery, racial oppression, racial segregation, or racial discrimination, including topics relating to the enactment and enforcement of laws resulting in sexism, racial oppression, segregation, and discrimination.“

A bill in the Missouri House mentions a few such protections. However, the Missouri bill is general in the sense that it explicitly bans the instruction of CRT by name, rather than simply blocking a few unsavory messages of CRT, as detailed by Texas and a few other states. Utah’s legislation, which is awaiting the governor’s signature, is also quite brief and explicit in its prohibition of CRT. I greatly prefer the Texas approach, however, as it makes clear that discussions of CRT in the classroom are not precluded, as might be inferred from the language of the Missouri bill.

But, But… You Just Don’t Get It!

PProtests against these legislative actions have shown a certain tone-deaf belligerence. According to an organization called Black Lives Matter at School and the Zinn Education Project, all the protesters want is a curriculum that illuminates:

“… full and accurate U.S. history and current events … rais[ing] awareness of the dangers of lying to students about systemic racism and other forms of oppression.”

One advocate says they must be free to teach the “truth” of our nation’s foundational and ongoing structural racism. The Missouri bill, they say, “fails to note ‘a single lesson’ which is ‘inaccurate’ or ‘misleads’ students.” It’s not as if it’s necessary for legislation to provide a series of examples, but be that as it may, these CRT advocates know exactly what many find objectionable. Essentially, their response is, “You don’t understand CRT! WE are the experts on systemic, institutional racism.” What they believe is somehow, every negative outcome is actuated by racism of one kind or another, past or present.

Divining the “Fault” Line

Are you below the poverty line? Earning less than a “living wage”? Are you unemployed? Is your credit score lousy? Do you live in a high crime area? In a “food desert”? Are you a single parent? Did you receive a failing grade? Is your rent going up? Did someone fail to defer to you? Did they “disrespect” you, whatever your definition? Were you scolded for being late?

Of course, none of those “outcomes” is exclusive to people of color or minorities. But wait! Someone else is earning a decent income. They got good grades. They have a high credit score. They drive a nice car. They have skills.

Does any of that make them guilty of oppression? Does this have something to do with YOU?

Well, you see, CRT teaches us that every unequal outcome must be the consequence of unjust, “disparate impacts” inherent to the social and economic order. To be clear, outcomes are a legitimate subject of policy debate, and we should aim for improved well-being across the board. The point that defenders of CRT miss is that unequal outcomes are seldom diabolic in and of themselves. Real indications of injustice, past or present, do not imply that any one class of individuals is inherently racist or behaves in a discriminatory manner.

Critical Theory Is a Fraud

Critical race “theory” is nothing but blame in fraudulent “search” of perpetrators. It is fraudulent because the perps are already identified in advance. It is “critical” because someone or something deserves blame. The real exercise is to spin a tale of misused privilege and biased conduct by the privileged perps against a set of oppressed victims.

CRT is not just one theory, but a whole slew of theories of blame. The very attitudes of the purveyors of CRT show they do not believe their “theories” are falsifiable. And indeed, allegations of unconscious bias are impossible to falsify. Thus, CRT is not a theory, as such. It amounts to a polemic, and it should only be discussed as such. It certainly shouldn’t be taught as “truth” to children, university students, or employees. More states should jump on-board to restrict the CRT putsch to propagandize.

It’s Time to Make Woke Corporations Hurt!

12 Wednesday May 2021

Posted by Nuetzel in Corporatism, Social Justice, Virtue Signaling

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Tags

Amazon, Apple, Bank of America, Black Lives Matter, Coca Cola, Delta Airlines, Disney, Disney Plus, Disparate impact, Diversity, EEOC, ESG Scores, Fuzzy Logic Blog, Joe Biden, Price Discrimination, Race-Based Discounts, Stakeholder Capitalism, Whole Foods, Wokeness

It’s a BLM discount! You need only shout the magic words! Ah, but if “woke” corporations are sincere in their avowals to help end racial injustice, there is so much more they can do! In fact, let me describe an idea so good and rich that we really must partner with Black Lives Matter and Antifa to bring it on!

Yes, we know how much the social justice warriors of corporate America care about diversity, inclusion, and eliminating unconscious bias. Also, in their business practices, they are eager to avoid “disparate impacts” on “protected classes” of individuals. However, if they want to get serious, they need to put real money where their mouths are. The Fuzzy Logic blog (FLB) suggests that we dare corporations celebrating “wokeness” to offer free products and services to people of color (POC)!

There is a strong rationale under current law for a slightly less drastic version of this proposal. For example, in 2019, the median household income of African Americans was about 60% that of whites, but Disney charges blacks and whites the same admission price to their theme parks. That means it costs a black family proportionately more of their income than a white family to spend a day at the park in Orlando. That, my friends, is a disparate impact!

I’m not aware of any legal challenges along these lines, but it’s not as if “one price” is a business necessity, which would otherwise offer Disney a defense against such a claim. Disney already offers discounts to seniors and other groups. But why wait for the EEOC to take action when Disney can demonstrate its high-mindedness and good faith by offering race-based discounts right now?

It would be fun to see how the company reacts to pressure for that kind of action. Based on income disparities, the company could discount tickets by 40% to African Americans and by about 26% for Hispanics. Discounting should be extended to Disney Plus subscriptions as well. Those discounts can be revisited each year with appropriate adjustments until such time as income parity is achieved.

In reality, differential pricing is practiced broadly by American businesses. It’s called price discrimination, and it is generally legal. Higher prices tend to be charged to market segments with less elastic (price-sensitive) demand, and lower prices are offered to segments with more elastic demand. It is a rational and often profit-maximizing approach to pricing, but its practice tends to be more subtle than discriminating on price with respect to race or ethnicity. It’s safe to say that pressure to do so would be disruptive and unwelcome to these firms. So I still like the idea!

But again, FLB’s post goes much farther: given past injustices, why limit the reparations to a correction for the disparate impact of pricing? Something more radical is needed as this is a matter of conscience, not merely a legal hurdle to neutralize income disparities:

“These companies (and the many thousands more engaged in this woke crap) must put their own profits where their big, fat lying mouths are. There will be no government bailouts for them; they must pay for their part in condoning and pushing white supremacy for the past bazillion years, and they must pay with their own wealth, wealth they say they accumulated on the backs of black and brown people.”

Therefore, FLB insists that Disney should offer free admission and streaming on Disney Plus to certain racial and ethnic minorities for a period of several years…and free accommodations at Disney Hotels! What a tremendous show of good faith in wokeness that would be!

We’re picking on Disney, and it’s not alone in its professed racial consciousness and pursuit of equal outcomes. There are so many others! Coca-Cola could issue coupons redeemable at full price through a program of outreach in minority communities. Delta Airlines could institute a program of “Black Life Passports” to bona fide African Americans (meaning one must identify as such!) for discounted or free fares. Bank of America will probably want to exceed the minimum requirements under community banking law by offering free banking services and heavily discounted account management fees to African Americans. Amazon will no doubt want to offer free Prime memberships to certain minorities and perhaps throw in some freebies at Whole Foods as well. And Apple has plenty of merchandise to give away. Why wait for Joe Biden to offer free phones in the run-up to the 2024 election like his old boss did?

You probably won’t be happy about this proposal if you’re a corporate shareholder, but then you should not be happy to have witnessed increasing management preoccupation with social justice, and you should not have been happy as your “agents” lost sight of their fundamental missions as business organizations: to produce something well and thereby do well for customers and shareholders. The sad consequence of “stakeholder capitalism” is that everything a business is supposed to do gets done worse.

I recently discussed the assignment of “scores” to public companies for their focus and performance on environmental, social, and governance (ESG) factors. These ESG scores are used by “woke” fund managers and advisors to select or rate stocks. I personally have no wish to invest in companies seeking to boost their ESGs, but you can read all about that at the link. For our purposes here, ESGs might serve well as a tool for identifying entities most in need of pressure to offer discounts and freebies to POC.

It would be great to see agitation against the woke-most corporations for race-based discounts and free products. Perhaps a broad discussion of the idea would prompt social justice warriors to get on board. It might provide some laughs, but the real hope is to shake the corporate wokesters from their virtue-signaling stupor. Most shareholders wouldn’t like race-based discounts, of course, and that’s part of the idea. A conceivable defensive maneuver for our “target” entities would be a lobbying effort for government action such as tax-financed reparations. That won’t necessarily be cheap for them or their shareholders, however. Get woke, go broke!

Socialist Supremacy’s Dark History of Culling the Race

26 Wednesday Feb 2020

Posted by Nuetzel in racism, Socialism

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Adolph Hitler, Che Guevara, Class Struggle, Disparate impact, FEE, Fidel Castro, Foundation for Economic Education, Friedrich Engels, Joseph Stalin, Karl Marx, Liberalism Unrelinquished, Marion Tupy, National Socialism, racism, Sidney and Beatrice Webb, Socialism

Can you think of a social philosophy steeped in many years of blame-making and hatred for “others”, including massive persecution, more than a passing flirtation with racism, and genocide. Why, that would be socialism! Marion Tupy’s 2017 article on racism and socialism at the Foundation for Economic Education (FEE) blog is a good reminder, just in case you know anyone having a romantic fascination with collectivist ideology. I know too many! And if they subscribe to the notion that socialism eschews racism, they are sadly mistaken. In fact, to put it kindly, socialists ultimately eschew anyone standing in their way. Here are a few excerpts from Tupy’s article:

“… Sidney and Beatrice Webb, who were both socialists and eugenicists, bemoaned the falling birthrates among so-called higher races in the New Statesman in 1913. They warned that ‘a new social order [would be] developed by one or other of the colored races, the Negro, the Kaffir or the Chinese’.

Che Guevara, the Argentine revolutionary and friend of the Cuban dictator Fidel Castro, offered his views on race in his 1952 memoir The Motorcycle Diaries, writing, ‘The Negro is indolent and lazy and spends his money on frivolities, whereas the European is forward-looking, organized and intelligent.’ …

In the New York Tribune in 1853, Karl Marx came close to advocating genocide, writing, “The classes and the races, too weak to master the new conditions of life, must give way.” His friend and collaborator, Engels, was more explicit.

In 1849, Engels published an article in Marx’s newspaper, Neue Rheinische Zeitung. In it, Engels condemned the rural populations of the Austrian Empire for failing enthusiastically to partake in the revolution of 1848. …

‘The Austrian Germans and Magyars will be set free and wreak a bloody revenge on the Slav barbarians,’ he continued. ‘The next world war will result in the disappearance from the face of the earth not only of reactionary classes and dynasties, but also of entire reactionary peoples. And that, too, is a step forward.’

Here Engels clearly foreshadows the genocides of the 20th-century totalitarianism in general and the Soviet regime in particular. In fact, Joseph Stalin loved Engels’ article and commended it to his followers in The Foundations of Leninism in 1924. He then proceeded to suppress Soviet ethnic minorities, including the Jews, Crimean Tatars, and Ukrainians.”

As Tupy notes, socialists are given to dressing-up their repressions as “class struggles”, as opposed to racism when it suits them, ideological eliminationism, and genocidal paroxysm. And these fits have often had pronounced “disparate impacts” on ethnic, racial and national minorities. In this sense, Hitler, the national socialist was no exception. Again, from Tupy:

“Hitler’s hatred of the Jews, for example, was partly rooted in his belief that capitalism and international Jewry were two sides of the same coin. As he once famously asked, ‘How, as a socialist, can you not be an anti-Semite?'”

Socialism is not an ideology of “kindness”. As a practical matter, it is an ideology of coercion, control, and extreme inequality of outcomes. It is antithetical to the ideal of personal liberty, not “liberal” in any real sense of the word. It should come as no surprise that the practitioners of socialism have indulged in virulent intolerance and racism. And it’s not simply a matter of “my way or the highway”. It’s often my way or death for those who don’t fall in line, and a highway to hell on earth for those who do.

Sacred Cow Chips

Tag Archives: Disparate impact

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Hiring Discrimination In the U.S., Canada, and Western Europe

Ubiquitous Guilt: EEOC Disparate Impact Liability

Dobbs, Roe, and the Freakout Over Federalism

Every Gentleman Best Heed the Power of Hysterics To Censor

Green Climate Policy Wreaks Poverty

The Left Always Hurts the Ones They “Love”

The Anti-CRT Revolt: Banning a Racist Curriculum

Socialist Supremacy’s Dark History of Culling the Race