I think to understand today's political polarization, and the emphasis on equity and disparities rather than intent and equality, you have to go back further--to Brown v. Board of Education. That's when Thurgood Marshall and the NAACP amassed data to show that segregated schools hurt black children, and argued that the doctrine of separate but equal was wrong without needing to show any intent to harm black people--the harmful effects were sufficient. In any legal system, the first step toward justice is equality by prohibiting de jure discrimination. The second step toward justice is equity by prohibiting de facto discrimination--that's what the Griggs ruling did, and Griggs was right. But it's very hard to argue that political polarization was invented in 1971 when we had many worse forms of political polarization during the 1960s. It's also questionable that political polarization is such a terrible thing if we had far less polarization during the repressive eras of Jim Crow and McCarthyism.
There's also a difference in how we're defining polarization that matters here. I'm identifying a specific mechanism that makes certain good faith disagreements structurally impossible - not measuring historical levels of political conflict. Those two may or may not be aligned. The Griggs decision created conditions where questioning statistical disparities became morally equivalent to supporting discrimination. That is qualitatively different from other forms of political division or disagreement. Someone could argue that it's less or more harmful or that the decision was worth it despite the consequences. I'm saying the consequences are all but baked into the decision.
You seem to be arguing that no one (in America? the world? academia?) is allowed to question whether statistical disparities are proof of discrimination, or else they are accused of supporting bigotry. I don’t think there’s evidence that’s true, even in liberal academia. After all, liberal academia has always had statistical disparities in favor of white men as professors, and yet it is incredibly rare for any professor to declare that their colleagues are racist and sexist–and even rarer for those white men to actually believe it. Denouncing your colleagues as bigots based on statistical disparities is not a presumption no one is allowed to criticize–it’s the opposite, a taboo that no academic is likely to express without serious personal and professional consequences.
You might ask Larry Summers, James Damore, or even Charles Murray & Richard Herrnstein (just to name a few off the top of my head) if it's OK to question the cause of disparities.
I'm not arguing that political polarization began in 1971 or even that polarization is inherently negative. Rather, I'm identifying a specific mechanism that made certain kinds of good faith disagreement effectively impossible. While Brown showed that segregation caused harm regardless of intent, Griggs went further by establishing that statistical disparities alone could be sufficient evidence of discrimination. I'm making a specific argument about a particular mechanism for polarization.
A key feature of the Brown case was arguing that segregation caused psychological harm even if the facilities were "equal" (while black schools in many districts were woefully underfunded, some districts did provide roughly equal resources, including Topeka, KS, the defendant in the Brown case). The Court agreed: "To separate [black children] from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely to ever be undone." ( Brown, 347 U.S. at 494)
Black educational achievement improved substantially in the 1970s and 1980s, which were the prime years of actual desegregation. Low-income students including inner-city blacks were disproportionately harmed by Covid shutdowns, so they've given back some of the prior gains.
As I understand it, the key flaw in the decision is that the mere existence of disparity is prima facie evidence of discrimination. In other words, given a disparity, the default assumption is "discrimination". (And now, to defend yourself, you have to prove you weren't discriminating -- you have to prove a negative. Guilty until proven innocent.)
Why is this troubling? As Thomas Sowell covers at length, disparate outcomes are the norm, not the exception. There are *many* reasons for disparate outcomes; this decision *always* puts discrimination at the top of the list.
Disparity in Nobel Prizes massively favors Jews. Jewish conspiracy, or some other reason? Disparity in the NBA massively favors blacks. Discrimination against whites, or some other reason? Go read "The Triple Package"; it's filled with examples of how cultural differences often lead to disparate outcomes.
And yes, people who even try to have good-faith discussions which question this assumption are often demonized with the "r" word.
When disparities are legally assigned to malign intent without evidence, there's no need to think critically. Once the law backs your moral certainty, why worry about details?
I don't think this characterization of the Griggs case is fair. You parenthetically mention "business necessity" only to dismiss it, but this is actually central to the case. The opinion very explicitly states, "Congress did not intend by Title VII, however, to guarantee a job to every person regardless of qualifications." It is valid to have disparities when those reflect actual qualifications for a job; no one thinks the NBA is racially discriminatory to be disproportionately black, or the NHL to be disproportionately non-Hispanic white. The problem the Court saw was with job requirements that it considered to have no meaningful relationship to the actual job, when those requirements were widely differently met by different races. One aptitude test at question was passed by 58% of whites and 6% of blacks. Had it been proven to directly correlate to job performance, that still would have been permissible, but Duke Power couldn't show that, and therefore it was ruled impermissible.
Was that disparity the reason Duke Power used the test? That's unknown. But it is undeniable that numerous subterfuges were used, particularly in the South, to avoid treating blacks equally from the time of the 13th Amendment forward through Jim Crow and beyond. Grandfather clauses and literacy tests were only two of many ways in which theoretically equal treatment was actually highly discriminatory. Finding a "smoking gun" of documentary evidence for the reason a practice is put in place can be difficult, even when the effect is obvious and the intent is highly suspect. To lay the blame for political polarization on the attempt to root out invidious discrimination is, I think, at best confusing symptom and underlying disease.
" It is valid to have disparities when those reflect actual qualifications for a job; no one thinks the NBA is racially discriminatory to be disproportionately black..."
So are you claiming that "being black" renders you more qualified to play in the NBA? That claim may (through some long chain of statistical inferences) be true, but I can't imagine it's easy to demonstrate in a court of law. Particularly when there is a "guilt-by-association" attitude towards claims of "meaningful relationship".
You're totally misunderstanding what I'm saying. The number of blacks in the NBA is far higher (70%) than their proportion in the general population (14%). No one thinks that's due to pro-black racial discrimination. Likewise, the NHL is almost all non-Hispanic whites (97%). It's not racism there, either; in both cases, the best players for various non-discriminatory reasons skew to one side or the other of the racial line. The Griggs decision does not consider such situations to be cases of discrimination.
I think the NBA is a bad example. As I understand Griggs, you need to produce a specific reason why it IS NOT discrimination. So, in the case of the NBA, what are the specific reasons that account for excess blacks? I claim the NBA fails the Griggs test of " valid to have disparities when those reflect actual qualifications". I'm not claiming the NBA (or NHL) is racist; I'm asking "what evidence of non-racism would pass the Griggs test"?
I'm not a lawyer, and I won't claim to be an expert on Griggs, but the key phrase in the Civil Rights Act is "reasonable measure of job performance." The NBA probably is a bad example in that the Act's restriction is on employment tests, which is to say a gatekeeper for consideration. I don't think the NBA has any tests in that sense; while you've got a much better chance of being selected if you're tall, there's still the Spud Webb that can get in if he makes up for his lack of height in other ways. But my intended point is that we all recognize (and so does the law) that differences in outcome aren't necessarily evidence of racism.
So to think of another possibility: If you want a job as an attorney, you have to pass the bar exam. Currently, about 5% of attorneys are black. But having passed the bar is a legitimate job requirement; someone who hasn't passed it can't claim discrimination when his application is rejected.
Largely agreed. But the point I'm trying to make is that it seems that in some cases, the burden is on the employer ("present an affirmative case why this isn't discrimination"); in other cases (e.g. the NBA), there's apparently no need to provide any legal argument -- the "default position" is one of "no discrimination". And that troubles me.
I think to understand today's political polarization, and the emphasis on equity and disparities rather than intent and equality, you have to go back further--to Brown v. Board of Education. That's when Thurgood Marshall and the NAACP amassed data to show that segregated schools hurt black children, and argued that the doctrine of separate but equal was wrong without needing to show any intent to harm black people--the harmful effects were sufficient. In any legal system, the first step toward justice is equality by prohibiting de jure discrimination. The second step toward justice is equity by prohibiting de facto discrimination--that's what the Griggs ruling did, and Griggs was right. But it's very hard to argue that political polarization was invented in 1971 when we had many worse forms of political polarization during the 1960s. It's also questionable that political polarization is such a terrible thing if we had far less polarization during the repressive eras of Jim Crow and McCarthyism.
There's also a difference in how we're defining polarization that matters here. I'm identifying a specific mechanism that makes certain good faith disagreements structurally impossible - not measuring historical levels of political conflict. Those two may or may not be aligned. The Griggs decision created conditions where questioning statistical disparities became morally equivalent to supporting discrimination. That is qualitatively different from other forms of political division or disagreement. Someone could argue that it's less or more harmful or that the decision was worth it despite the consequences. I'm saying the consequences are all but baked into the decision.
You seem to be arguing that no one (in America? the world? academia?) is allowed to question whether statistical disparities are proof of discrimination, or else they are accused of supporting bigotry. I don’t think there’s evidence that’s true, even in liberal academia. After all, liberal academia has always had statistical disparities in favor of white men as professors, and yet it is incredibly rare for any professor to declare that their colleagues are racist and sexist–and even rarer for those white men to actually believe it. Denouncing your colleagues as bigots based on statistical disparities is not a presumption no one is allowed to criticize–it’s the opposite, a taboo that no academic is likely to express without serious personal and professional consequences.
You might ask Larry Summers, James Damore, or even Charles Murray & Richard Herrnstein (just to name a few off the top of my head) if it's OK to question the cause of disparities.
I'm not arguing that political polarization began in 1971 or even that polarization is inherently negative. Rather, I'm identifying a specific mechanism that made certain kinds of good faith disagreement effectively impossible. While Brown showed that segregation caused harm regardless of intent, Griggs went further by establishing that statistical disparities alone could be sufficient evidence of discrimination. I'm making a specific argument about a particular mechanism for polarization.
I wonder (and I really have no idea): did Brown actually show that segregation "caused" harm? And was it even possible to determine this 70 years ago?
I suppose you could attempt to determine this today: are black students doing better in terms of academic achievement today than they were in 1954?
A key feature of the Brown case was arguing that segregation caused psychological harm even if the facilities were "equal" (while black schools in many districts were woefully underfunded, some districts did provide roughly equal resources, including Topeka, KS, the defendant in the Brown case). The Court agreed: "To separate [black children] from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely to ever be undone." ( Brown, 347 U.S. at 494)
Black educational achievement improved substantially in the 1970s and 1980s, which were the prime years of actual desegregation. Low-income students including inner-city blacks were disproportionately harmed by Covid shutdowns, so they've given back some of the prior gains.
As I understand it, the key flaw in the decision is that the mere existence of disparity is prima facie evidence of discrimination. In other words, given a disparity, the default assumption is "discrimination". (And now, to defend yourself, you have to prove you weren't discriminating -- you have to prove a negative. Guilty until proven innocent.)
Why is this troubling? As Thomas Sowell covers at length, disparate outcomes are the norm, not the exception. There are *many* reasons for disparate outcomes; this decision *always* puts discrimination at the top of the list.
Disparity in Nobel Prizes massively favors Jews. Jewish conspiracy, or some other reason? Disparity in the NBA massively favors blacks. Discrimination against whites, or some other reason? Go read "The Triple Package"; it's filled with examples of how cultural differences often lead to disparate outcomes.
And yes, people who even try to have good-faith discussions which question this assumption are often demonized with the "r" word.
When disparities are legally assigned to malign intent without evidence, there's no need to think critically. Once the law backs your moral certainty, why worry about details?
I don't think this characterization of the Griggs case is fair. You parenthetically mention "business necessity" only to dismiss it, but this is actually central to the case. The opinion very explicitly states, "Congress did not intend by Title VII, however, to guarantee a job to every person regardless of qualifications." It is valid to have disparities when those reflect actual qualifications for a job; no one thinks the NBA is racially discriminatory to be disproportionately black, or the NHL to be disproportionately non-Hispanic white. The problem the Court saw was with job requirements that it considered to have no meaningful relationship to the actual job, when those requirements were widely differently met by different races. One aptitude test at question was passed by 58% of whites and 6% of blacks. Had it been proven to directly correlate to job performance, that still would have been permissible, but Duke Power couldn't show that, and therefore it was ruled impermissible.
Was that disparity the reason Duke Power used the test? That's unknown. But it is undeniable that numerous subterfuges were used, particularly in the South, to avoid treating blacks equally from the time of the 13th Amendment forward through Jim Crow and beyond. Grandfather clauses and literacy tests were only two of many ways in which theoretically equal treatment was actually highly discriminatory. Finding a "smoking gun" of documentary evidence for the reason a practice is put in place can be difficult, even when the effect is obvious and the intent is highly suspect. To lay the blame for political polarization on the attempt to root out invidious discrimination is, I think, at best confusing symptom and underlying disease.
" It is valid to have disparities when those reflect actual qualifications for a job; no one thinks the NBA is racially discriminatory to be disproportionately black..."
So are you claiming that "being black" renders you more qualified to play in the NBA? That claim may (through some long chain of statistical inferences) be true, but I can't imagine it's easy to demonstrate in a court of law. Particularly when there is a "guilt-by-association" attitude towards claims of "meaningful relationship".
You're totally misunderstanding what I'm saying. The number of blacks in the NBA is far higher (70%) than their proportion in the general population (14%). No one thinks that's due to pro-black racial discrimination. Likewise, the NHL is almost all non-Hispanic whites (97%). It's not racism there, either; in both cases, the best players for various non-discriminatory reasons skew to one side or the other of the racial line. The Griggs decision does not consider such situations to be cases of discrimination.
I think the NBA is a bad example. As I understand Griggs, you need to produce a specific reason why it IS NOT discrimination. So, in the case of the NBA, what are the specific reasons that account for excess blacks? I claim the NBA fails the Griggs test of " valid to have disparities when those reflect actual qualifications". I'm not claiming the NBA (or NHL) is racist; I'm asking "what evidence of non-racism would pass the Griggs test"?
I'm not a lawyer, and I won't claim to be an expert on Griggs, but the key phrase in the Civil Rights Act is "reasonable measure of job performance." The NBA probably is a bad example in that the Act's restriction is on employment tests, which is to say a gatekeeper for consideration. I don't think the NBA has any tests in that sense; while you've got a much better chance of being selected if you're tall, there's still the Spud Webb that can get in if he makes up for his lack of height in other ways. But my intended point is that we all recognize (and so does the law) that differences in outcome aren't necessarily evidence of racism.
So to think of another possibility: If you want a job as an attorney, you have to pass the bar exam. Currently, about 5% of attorneys are black. But having passed the bar is a legitimate job requirement; someone who hasn't passed it can't claim discrimination when his application is rejected.
Largely agreed. But the point I'm trying to make is that it seems that in some cases, the burden is on the employer ("present an affirmative case why this isn't discrimination"); in other cases (e.g. the NBA), there's apparently no need to provide any legal argument -- the "default position" is one of "no discrimination". And that troubles me.