abridge

Challenging Disparate Impact

“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” —Section 1, Amendment XIV, U.S. Constitution

“A theory of liability that prohibits an employer from using a facially neutral employment practice that has an unjustified adverse impact on members of a protected class. A facially neutral employment practice is one that does not appear to be discriminatory on its face; rather it is one that is discriminatory in its application or effect.” —the definition of “disparate impact.”

For years, many Americans have been unable to reconcile the Constitution’s demand for equal treatment with a theory whereby “discrimination” is defined solely by statistical outcomes as they relate to a protected class. In what might be the most ambitious effort undertaken by the Trump administration to date, White House officials are reportedly planning to ban disparate impact.

According to a bombshell report by Paul Sperry, White House Budget Director and interim Chief of Staff Mick Mulvaney is the prime mover of “a proposed executive order, originally drafted by two conservative Washington think tanks” that would “repudiate the underlying rationale for scores of regulations and thousands of government lawsuits alleging racial discrimination, resulting in billions of dollars in fines.”

Disparate impact was engendered by the Supreme Court’s 1971 decision in Griggs v. Duke Power Co. Using Title VII of the Civil Rights Act of 1964 as their vehicle, black American employees sued the power company, challenging its requirement that one must posses a high-school diploma or pass intelligence tests as a condition of employment in, or transfer to, jobs at the plant, even though those requirements were not intended to determine or measure job-related performance. SCOTUS found in favor of the employees, and further determined that Title VII “proscribes not only overt discrimination, but also practices that are fair in form, but discriminatory in operation.”

In a 5-4 ruling in 2015, SCOTUS reaffirmed disparate impact in Texas Department of Housing & Community Affairs v. The Inclusive Communities Project, Inc. The Court agreed with the non-profit’s assertion that the state housing department “segregated housing patterns by allocating too many tax credits to housing in predominantly black inner-city areas and too few in predominantly white suburban neighborhoods.” Thus, SCOTUS once again endorsed the idea that statistics trumped intent.

So why challenge the law now? Sperry asserts that “conservative opponents of the doctrine believe the currently constituted high court would uphold an executive order doing away with it.”

How ironic. For decades, leftists have viewed an activist Supreme Court — empowered by a “living” Constitution — as their ultimate vehicle for implementing policies they could not get through state legislatures or Congress — all while many warned that such activism cuts both ways.

Yet there is more than activism involved here. While some claims of discrimination are obviously legitimate, Sperry explains that the Left has used disparate impact as a “social-engineering weapon aimed at equalizing outcomes and extending the government’s power over the private sector.”

Two of those incarnations were devastating. In one, when the federal government pressured banks to relax loan standards for minority applicants to avoid charges of racism, that effort fueled the 2008 financial meltdown.

How much pressure? At one point, “valid” income considerations for obtaining a mortgage included welfare payments and unemployment benefits.

The other incarnation? An Obama administration that sued hundreds of schools for disciplining black students at higher rates than whites — while ignoring the inconvenient reality that black students committed more infractions — precipitated the Florida-based PROMISE program. PROMISE sought to limit the number of minority-student interactions with the criminal-justice system by exempting 13 specific misdemeanors from police involvement. As a result, the Parkland assailant was able to obtain the weapon with which he killed 17 students and wounded 17 more at Marjory Stoneman Douglas High School last year.

Regardless, the battle to do away with this pernicious concept will be fierce. “The attack on disparate impact is the latest in a series of Trump administration assaults on civil rights,” asserts Sarah Hinger, an ACLU Racial Justice Program staff attorney. “As the nation continues its long march toward equality, it would be outrageous to destroy such an important means of advancement — one the civil rights bar still depends on to make its case in court,” declares the New York Times editorial board. “Donald Trump wants to make racism OK unless someone can prove the accused party intended to discriminate against them,” claims columnist Michael Harriot.

That would be proof — as opposed to a legally enforceable presumption of racism.

Roger Clegg, president of the Center for Equal Opportunity, a conservative think tank, sees the absurdity of such assertions. “The disparate-impact approach requires decision-makers to make decisions with an eye on race,” he states. “That is exactly what the civil rights laws are supposed to prohibit.”

Instead, the Obama administration forced the issue. The Equal Employment Opportunity Commission (EEOC) discouraged employers from checking a job applicant’s criminal records because that had “disparate impact” on black men whose incarceration rate is seven times higher than that of whites. In one egregious case, auto manufacturer BMW paid $1.6 million in relief to 56 black Americans with criminal records it turned down for jobs. The feds also forced the company to ignore criminal charges against any job applicant, even if they included violent felonies.

In another case, auto lender Ally Financial was [fined(https://www.justice.gov/opa/pr/justice-department-and-consumer-financial-protection-bureau-reach-98-million-settlementto) a record $98 million by the DOJ and the Consumer Financial Protection Bureau (CFPB) for refusing to admit bias against minority borrowers. Yet in subsequent congressional testimony, the CFPB admitted it didn’t even factor credit scores of minority applicants into its investigation, despite many studies showing they are the most reliable indicators of potential loan defaults.

Yet the beat goes on. New House Banking Committee Chairwoman Maxine Waters (D-CA) has promised to take on “dishonest and criminal” banking officials who don’t loan out enough money in low-income urban areas. New House Education Committee chairman Rep. Bobby Scott (D-VA) wants to expand the Title VI statute to include disparate impact and precipitate more lawsuits, while Rep. Sheila Jackson Lee (D-TX) of the House Judiciary Committee promises to use it as a vehicle to engender reparations for slavery.

“If you don’t favor using the disparate impact approach in civil-rights enforcement to the nth degree, then you are a ‘racist,’ and the mainstream media can be counted on to accept this narrative uncritically,” said Clegg.

The American public? The bet here is the race card is “maxed out,” and that color-blindness, equal opportunity and meritocracy still resonate with a majority of the electorate. The same majority increasingly tired of the idea that the rights of specific groups supersede those of individual Americans, and that those groups are apparently entitled to equality of outcome, not opportunity.

Let the pushback begin — in earnest.

Dori: Edmonds city gov. seeks to shut down free speech after ‘Build That Wall’ cookie

In this Jan. 24, 2019, video image provided by KING-TV, Ana Carrera shows her phone with a photo of cookies she posted in Facebook, after she took the picture at Edmonds Bakery in Edmonds. (KING-TV via AP)

A couple of weeks ago, a baker in Edmonds named Ken Bellingham was baking Valentine’s cookies, and wrote a goofy message on one of them to amuse his conservative daughter-in-law — “Build That Wall.”

The cookie — again, meant as a joke — got put in the case at the Edmonds Bakery. A woman posted a photo of the “Build That Wall” cookie on social media, and the Left went crazy. The baker was roundly condemned by people across the country. Protesters wanted the economic ruination of a 26-year-old business because of three words on a cookie.

What happened on Tuesday with a governmental organization in Edmonds is frightening. It is truly terrifying that this is where we are with government around here. We have this thing called the First Amendment, where government cannot abridge free speech.

RELATED: Edmonds baker says support he’s received is more powerful than uproar

The Edmonds Diversity Commission released a statement about the Build That Wall cookie. Clearly this government commission is so useless that it has nothing better to do than release official statements about cookies.

A couple weeks ago our community was negatively impacted by a business owner’s choice to spread a divisive and, for some, hurtful message. While we are aware that speech is protected by our First Amendment, words have consequences. Words can be hurtful and divisive but also can unite, embrace and welcome people into a community.

Many of our local Edmonds Merchants [sic] have risen as shining examples of how positive messages can bring a community together. These businesses have chosen to promote kindness, love and compassion by exhibiting thoughtful window displays, donating to organizations, and hosting community-engagement events.

We hope that more businesses and community members will continue to promote these values.

The Diversity Commission is committed to working with the city and other organizations in our ongoing efforts to promote a more inclusive and welcoming community.

Don’t get me wrong, I love the town of Edmonds. It’s a fantastic community. But a bunch of small-town bureaucrats who have somehow gotten appointed to the Orwellian-sounding Diversity Commission have decided to condemn a taxpaying small business owner because he wrote three words on a frosted heart cookie.

Let me explain how dangerous this is. The government is deciding what speech is acceptable and what speech should be condemned with a statement. This is as scary as government gets. They believe that their role is to control your thought; they are going to pressure you to think like a Leftist. Does this sound a bit like the ‘Thought Police’ out of “1984” to anyone?

They are all about diversity, except for diversity of thought. You have to think like a Leftist, or else you will have a government commission issuing a statement trying to hurt your business. I think the owner of Edmonds Bakery could have a lawsuit if he wanted. Government is not supposed to abridge our free speech. It is not up to some commission bureaucrat to determine what kind of speech is acceptable.

“I’m not negatively impacting anybody — in fact, my business has really done well and I think I’ve brought a lot of people to town [who] wouldn’t ordinarily be here if it hadn’t been for the cookie,” Bellingham told me on Thursday. “So I’m scratching my head on this one.”

The hilarious thing is, Bellingham thinks that the Diversity Commission’s mention of “thoughtful window displays” that “promote kindness, love, and compassion” is a direct reference to the Cheesemonger’s Table in Edmonds, which has come out with “Build Love” cookies to counter the “Build That Wall” cookie. This is truly the theatre of the absurd.

Here’s my challenge to the Edmonds Diversity Commission. I would challenge you to sit down face-to-face with an Angel Mom or an Angel Dad. Would you sit down face-to-face with a parent whose child has been murdered by an illegal immigrant? Many of those parents support building a wall, because they have suffered the worst tragedy a human being can endure, and it wouldn’t have happened if the perpetrator had not been allowed to come into the country. Would you, Edmonds Diversity Commission, have the guts to tell Angel Moms that their words were divisive and hurtful? I doubt it. You just condemn a baker and then hide when someone in the media wants to challenge you on it, because that’s what Leftist bureaucrats do.

And beyond that, Diversity Commission, government should play no role in telling citizens of America what speech is acceptable and what speech is worthy of condemnation. That is a dangerously slippery slope. Should I run my words by the Edmonds Diversity Commission every day before my show and make sure that I don’t say anything hurtful or divisive? Because you know, KIRO Radio has a strong signal, and you can’t block it at the Edmonds city limits. Are you going to condemn me via an official statement every time I am hurtful or divisive? Is that the role of government?

We tried to get the Diversity Commission to come on. Of course we received no response. But what’s funny is that after we started calling them, they issued an updated statement. This is a case where the cover-up is even worse than the original transgression, because it shows what a bunch of liars are on the Diversity Commission.

Regarding Tuesday’s message from the Diversity Commission, it was definitely not the intent to focus on any particular businesses or individuals, but rather to counter the negative comments that had arisen over the past couple of weeks and instead spread a message of inclusion and acceptance. The City apologizes if the message was taken as a direct affront to any particular individuals and hope that, again, the message of inclusion and acceptance will prevail.

Are they really that stupid? They were clearly singling out Ken Bellingham’s Edmonds Bakery and the “Build That Wall” cookie in the first statement. This follow-up statement not only sounds idiotic, but is a downright lie. You’re all liars now. Not only do you believe it’s the role of government to tell us how to think, to slap on the wrist anyone who doesn’t believe your Leftist Groupthink, but then you lie about it in your cover-up statement.

A taxpaying business owner of 26 years is getting slapped down by a government commission. I think it’s reprehensible for anyone in government to try to tell us how we are supposed to think and what we are allowed to say without government reprimand.

Picks of the Week: Tips and tricks for enjoying and escaping Valentine’s Week

Happy Valentine’s Week, Berkeley!

By virtue of being a single gal for the past several Valentine’s Days I often avoid customarily “Valentine’s Day” content but I invite you to engage in all of the picks this week in pairs, or trios or even quads if you so wish — you do you.

Ariana Grande is back in action mere months after her last album release, Sweetener, with her new album thank u, next which was released Feb. 8. Be sure to spend Monday listening to the album, which is going to have everyone talking over the next week (and by everyone I mean definitely by me and my friends). The album is a mere 41 minutes long, but if you don’t have the time I will abridge it even further. “needy,” “ghostin” and “fake smile” are the only real must-listens from the album, which in general pales in comparison to Sweetener, in my humble opinion.

Spend Tuesday working on a crossword. The New York Times offers full access to a daily crossword and access to their entire archive of crosswords for less than five dollars a month. Tuesday is the second-easiest day of their crossword and they increase in difficulty leading up to Saturday. This week I was able to make it to Thursday before crumbling and Googling almost every single answer. This past week of puzzles included clues like “Somebody That I Used to Know, singer, 2011” and “comment made while yawning.” The Thursday puzzle had the clue “____ Cinemas, second-largest theater chain in the U.S.” which I was thrilled to know off the top of my head because it was my former place of employment, and it is moments like that, my friend, that make everything a little more bearable.

Speaking of Regal Cinemas, on Thursday, “Isn’t It Romantic” will be playing at United Artists 7 on Shattuck Avenue. As someone who loves romantic comedies, I can comfortably say I would adore a loving parody of the genre just as much. That is exactly what “Isn’t It Romantic” will be. Although the filmmakers continue to make “Pitch Perfect” movies despite my pleas for an end, I do still think Rebel Wilson and Adam Devine are excellent together. They both star in this new rom-com (or anti-rom-com?) about Wilson’s character who wakes up one day inside of a romantic comedy.

Beyond what’s in the theater, there is a plethora of romantic movies both new and old begging to be watched during this corporate holiday of sorts. For the romantics, “Notting Hill,” “The Princess Bride” and “Juno” are some of my favorites. For a more anti-love love story “Waitress,” “My Best Friend’s Wedding” and “500 Days of Summer” are seminal classics of the genre. I, for one, will be spending my Valentine’s Day watching a double feature of “Eternal Sunshine of the Spotless Mind” and “Call Me By Your Name” and then heading over to St. Valentine’s grave, located in the lovely Whitefriar Street Church in Dublin, Ireland.

As for the past week at The Daily Californian, our always funny and often unforgiving film beat, Jackson Murphy, reviewed “Velvet Buzzsaw,” skewering it in customary fashion. Shannon O’Hara wrote an excellent piece about the misguided Maroon 5 halftime show. This and some tweets about Tom Brady giving off “kisses-son-on-the-lips energy” have been the only Super Bowl related content I’ve consumed this season. Grace Orriss’ review of “She Persisted, the Musical” at the Bay Area Children’s Theater made me well up just reading it, because we stan musicals that lift up young budding feminists!

For some news from sources other than the illustrious Daily Californian, The New Yorker just published an absolutely startling investigation into the lies and manipulations of author A.J. Finn, who wrote last year’s bestselling thriller “The Woman in the Window.” Meanwhile, the newest edition of radio program “Wartime Radio,” “This American Life” has an absolutely stunning and heartbreaking first act this week that reminded me of all of the reasons I fell in love with the show in the first place. In lighter news to match the Valentine’s Day theme, Vogue profiled Hailey and Justin Bieber for its newest issue that certainly changed the way I viewed the couple, though I’m not sure if it was for the better or worse. Also featured is Justin Bieber saying “baby boo” twice, which is two times too many.

Onwards,

Kate.