Roger Clegg, Hans A. von Spakovsky and Elizabeth H. Slattery proclaim that “discrimination on the basis of race and ethnicity is unconstitutional, unlawful, and morally repugnant, yet the practice is rife throughout federal law and government programs”:
[M]ost civil-rights laws have no such “disparate impact” provisions; rather, they prohibit actual discrimination (“disparate treatment”). The laws have been expanded, however, through agency interpretation and activist court rulings to include “disparate impact.” As Justice Antonin Scalia has explained, disparate impact “place[s] a racial thumb on the scales, often requiring employers to evaluate the racial outcomes of their policies, and to make decisions based on (because of) those racial outcomes.” Thus, Congress should make clear that laws prohibiting disparate treatment do not extend to mere disparate impact.
Jamelle Bouie calls that argument “ahistorical nonsense”:
“Disparate impact” exists because discrimination was often achieved by neutral means.
During Jim Crow, for instance, explicitly discriminatory voting was illegal. White Southerners could block blacks from using public facilities or mandate segregated businesses, but they couldn’t bar blacks from voting. Hence the poll tax and the literacy test. In theory, they were universal requirements—everyone was vulnerable to failing the test or lacking the funds to pay a tax.
In practice, of course, extreme poverty and deprivation meant that ex-slaves and their descendants were most likely to fail the test or lack the funds. The same went for felon disenfranchisement; in theory, everyone who committed the felony of vagrancy or theft could lose his or her voting rights. In practice, however, these crimes were selectively applied to blacks.
The Dish 