Part 7 of 9: Why This Breaks Democracy
Hi everyone! I did a fun Substack Live with Joe Walsh yesterday evening—please check it out! :-) Since we have some new readers this morning, I want to situate the current post for them.
A few days ago, I started a 9-part series on how a new definition of discrimination changed how we think about equality, racism, and justice. This is the 7th post in that series, so I’ll be wrapping it up on Saturday.
Enjoy!
[Full contents linked here]
Impact-over-intent thinking spread from a legal doctrine about employment tests to a comprehensive framework governing American institutional life. This transformation occurred through legal expansion, academic validation, institutional adoption, and political mainstreaming.
But this history raises a fundamental question: What happens to democratic deliberation when such a framework becomes unchallengeable?
The Core Problem
The impact-over-intent framework rests on multiple premises:
Disparate outcomes indicate discrimination
Discrimination stems from racism, which is morally wrong
Intent doesn’t matter for determining wrongdoing
Taken together, these create a logical problem for democratic discourse. If disparate outcomes equal discrimination, then several things follow:
On causation:
Questioning whether a disparity indicates discrimination becomes questioning whether discrimination occurred—which can be characterized as denying its existence.
Offering alternative explanations for inequality becomes making excuses for discrimination.
Policy disagreements about how to address disparities become disagreements about whether to address discrimination—which places one side in an apparently indefensible position.
On the unit of analysis:
The group becomes the proper unit for measuring justice, not the individual. If outcomes must be proportional across demographic groups, then individual merit or individual circumstances become secondary considerations—or obstacles to justice.
Defending individual-focused policies (like merit-based admissions or colorblind hiring) means defending a system that produces discriminatory group outcomes.
There’s no principled way to argue that individuals should be evaluated individually when groups show disparate results.
On harm:
Harm becomes defined by the recipient’s experience rather than the actor’s conduct. If someone from a marginalized group experiences a comment or policy as harmful, it is harmful—regardless of intent, context, or whether others would experience it differently.
This makes harm unfalsifiable: the person claiming harm is the authority on whether harm occurred.
Disagreeing with someone’s characterization of harm becomes dismissing their lived experience, which is itself a form of harm.
On remedies:
If disparities prove discrimination, then eliminating disparities becomes the measure of whether discrimination has been addressed. Proportional representation across groups becomes the goal.
Any policy that doesn’t actively work toward proportional outcomes can be characterized as perpetuating discrimination.
There’s no endpoint except demographic proportionality—any remaining disparity indicates remaining discrimination requiring continued intervention.
How This Plays Out
Consider the following scenario:
A school board in a suburban district debates eliminating its gifted and talented program (much like this). District data shows the program enrolls 45% Asian students, 35% white students, 12% black students, and 8% Hispanic students—dramatically different from the district’s overall demographics. Entrance is by standardized test scores, which any student can take.
At the packed board meeting, some parents argue the program should remain because it serves students who need more advanced material and admission is based on objective criteria available to all. Other parents argue that the demographic disparities prove the system discriminates against black and Hispanic students.
Under the framework, parents defending the gifted program aren’t simply arguing for one educational approach among many reasonable options. They’re defending a practice that produces disparate outcomes, which the framework defines as discrimination. Several teachers who privately support keeping the program stay silent, knowing that speaking up will mark them as opposing equity initiatives.
A board member tries to suggest disparities in the program might reflect multiple factors—test preparation resources, different cultural emphases on academic competition, prior educational opportunities—but her comments are characterized in the local paper as “making excuses for discriminatory systems.”
The debate isn’t framed as weighing competing educational values—it’s framed as whether to eliminate a discriminatory practice. One side is defending justice; the other is defending discrimination. There’s no neutral ground where reasonable people can disagree about difficult tradeoffs.
Or consider:
Merit-based admissions: Some argue college admissions should prioritize academic achievement. Others argue they should consider race to achieve proportional representation. Both positions involve tradeoffs and value judgments.
Under the framework: If standardized tests produce disparate outcomes, they’re discriminatory. Supporting merit-based admissions means perpetuating discrimination.
Achievement gaps: Why do academic achievement differences exist? Multiple factors likely contribute: historical disadvantage, current barriers, school quality, family structure, individual choices. The policy response depends on which factors are emphasized.
Under the framework: Achievement gaps prove educational discrimination. Researching other contributing factors risks characterization as denying discrimination or blaming victims.
Criminal justice disparities: Why do arrest and incarceration rates differ by race? Possible factors include discriminatory policing, differential crime rates, socioeconomic variables, enforcement priorities, sentencing guidelines. Different diagnoses suggest different solutions.
Under the framework: Disparate incarceration rates prove discriminatory systems. Suggesting other factors contribute can be characterized as defending unjust outcomes.
The Democratic Problem
Democracy requires space for citizens to disagree about complex issues without such disagreement being treated as moral failure. When policy positions become evidence of bigotry, democratic deliberation becomes difficult.
The framework doesn’t leave room for morally sound disagreement about:
Whether all disparities indicate discrimination
What causes inequality
How to weigh competing values
What tradeoffs are acceptable
Which interventions are effective
These become questions with seemingly obvious moral answers rather than matters for democratic debate.
The Asymmetry
The framework creates an asymmetric debate structure:
Progressive positions arguing for outcome-based interventions align with preventing discrimination. Conservative positions emphasizing equal treatment regardless of outcomes can be characterized as allowing discrimination to persist.
This isn’t because conservatives are necessarily wrong. It’s because within a framework where disparities equal discrimination, any position tolerating disparate outcomes can be characterized as tolerating discrimination.
Next: Why Current Solutions Can’t Work