That’s why PJB said ‘core’ . There are white, British descended Kenyans, but nobody pretends they are like the dominant people — or really peoples — of Kenya. There are Ainu Japanese citizens, but nobody pretends they represent the mainstream. There are Uighur Chinese — but nobody pretends the Han aren’t the core ethnic group of China.

“TomB, why did you insert “purely statistical” into your sentence based on the Section 3 quote? … Disparate does not mean statistical!!!”

Because … yes it does as shown by the very title of the Uniform Guidelines Section 4 D. entitled “Adverse impact and the “four-fifths rule.”

And they don’t call it a “rule” for nothing.

To step back a bit, remedies such as bussing and affirmative action are never perfect. These two in particular have caused large negative impacts themselves. But to guarantee equal rights before the law, something has to be done. You can’t just say “illegal discrimination” and walk away.

So can anyone show that a certain level of homogeneity – the result, current condition, etc. – is by itself illegal?

“When we say that race should be a factor, we mean that skin color is a factor that mitigates or trumps the requirements for admission in order to make certain that some percentage of those with privileged pigmentation are admitted on terms not open to white applicants.”

Uh, no. That is not what it means. Making sure that some percentage are admitted is a quota, therefore, not legal.

Section 13, it says “the use of lawful selection procedures” are allowed. If a company’s hiring practices do show an adverse impact, then they are illegal and they can’t be used to remedy the effects of prior discriminatory practices.

I’m not arguing against circumstantial evidence or using statistics! Where did you get that? Here’s how adverse impact is shown. A group of black applicants are hired at a 10% acceptance rate. A group of white applicants, statistically the same as the black group on other measures, are hired at a 25% acceptance rate. That’s adverse impact. Same qualifications, different results. Of course, showing the black group is essentially the same on other measures than the white group is the hard part, but the point is stats are absolutely essential. What I’m saying is if 99% of all hires are white, that by itself does not make the hiring practices illegal.

Disparate does not mean statistical!!! Cheers.

“It implied that affirmative action should not be allowed permanent status and that eventually a ‘colorblind’ policy should be implemented. The opinion read, ‘race-conscious admissions policies must be limited in time.’ ‘The Court takes the Law School at its word that it would like nothing better than to find a race-neutral admissions formula and will terminate its use of racial preferences as soon as practicable. The Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.’ [Clarence Thomas reference]

The decision largely upheld the position asserted in Justice Powell’s concurrence in Regents of the University of California v. Bakke, which allowed race to be a consideration in admissions policy, but held that quotas were illegal.”

…

“The case was heard in conjunction with Gratz v. Bollinger, 539 U.S. 244 (2003), in which the Court struck down the University of Michigan’s more rigid, point-based undergraduate admission policy, which was essentially deemed a quota system.”

Also remember the defendant is a public university. Very different from a private employer.

But I’m not giving in quite yet. First, I want to disagree with the idea that homogeneity, by itself, is illegal. It is was causes the homogeneity that can be illegal. All-white golf clubs are obviously not illegal. On the other end, no-one claims that everything should be represented in the exact proportion of a given population. In between, that’s the reality. Okay, that said, I’ve got my work cut out for me this weekend. I’ll start choppin’!

Phaedon, you are confusing what causes illegal discrimination, the tort, with remedies to illegal discrimination, such as the quotes you provided. Here are some additional quotes from the story:

“A federal judge ruled in February that when Westchester sought federal housing and development funds, it failed to analyze, as required, how race could affect access to fair housing.”

And remember, there is no coercion here, just marketing:

“Whites cannot be excluded from buying or renting the homes, but the agreement calls for Westchester to market them throughout the county and in nearby areas with large nonwhite populations.”

Recall all the “busing for racial balance” ordered by federal judges.You have to quite disingenuous not to see that as punitive action against homogeneity.

Shouldn’t someone who persists in denying the patently obvious-like Holocaust deniers- be banned as a troll?

Sample Google hits:
diversity officer job description 144,000
cno* diversity 1,270,000
*chief of naval operations

An example from Utah:
http://www.diversity.utah.edu/

It’s an AP story by Jim Fitzgerald. But the AP seems to have removed the story from their site…

Griggs (1971) was the first test of the Blumrosen Civil Rights Act. Chief Justice Warren Burger declared that the illegal “administrative interpretation of the act by the enforcing agency is entitled to great deference.” The Court ruled that Duke Power was discriminating against blacks, because the company’s requirements for promotion—either a high school diploma or a passing grade on Wonderlic and Bennett intelligence and mechanical comprehension tests—were “built-in headwinds for minority groups.” The Court ruled with Blumrosen that discrimination did not require intent, only consequence.

Blumrosen’s rewrite of the Civil Rights Act required employers to adopt racial quotas in order to avoid federal lawsuits. Private employment and promotion quotas are held to be legal because of the fiction that they are “voluntarily adopted” and not required by federal statute. They are required, of course, to avoid federal lawsuits.
(…)

“The suburban county just north of New York City agreed Monday to create hundreds of affordable homes in heavily white communities and encourage nonwhites to move in.

The agreement, reached with the help of the federal department of Housing and Urban Development, settles a $180 million lawsuit brought by the Anti-Discrimination Center of Metro New York against Westchester County.

‘We’re clearly messaging other jurisdictions across the country that there has been a significant change in the Department of Housing and Urban Development and we’re going to ask them to pursue similar goals as well,’ said deputy secretary Ron Sims.

The agreement also calls for Westchester to pay the federal government $21.6 million, which the government will then return to the county to help pay for the housing. The county will add $30 million to its capital budget for housing. An additional $10.9 million will be paid to the anti-discrimination center, its lawyers and the government.”

Okay, I’ll take your challenge, but first a comment on what Mr. Dale noted because it is in fact an even more powerful proof of the strength of the diversity policy/goal of the U.S.

That is, and I will get to it, the sub-issue you and I were talking about was what evidence can prove discrimination in court cases alleging many kinds of *intentional* discrimination. But of course regardless of what evidence is sufficient to prove such a case one can still say that the government itself isn’t really involved in such private cases; that … “okay maybe its laws allow such cases to be brought and won by private individuals but that’s still not a showing that diversity is really a national goal.” (Which of course was the big issue we were debating.)

It is here then that Mr. Dale’s citation comes into play because what he cites to are the regulations establishing the standards by which a simply huge number of federal governmental bodies—including the feared EEOC— adjudge when *they* find illegal discrimination and issue orders and find violations regarding same. That is, when—as a matter of law— they will simply *conclude* discriminatory intent, period. And they are, as one can see by following Mr. Dale’s link, packaged essentially as a warning to companies about what their hiring practices must do.

So what must they do, and what must they not do? I quote from Section 3:

“The use of any selection procedure which has an adverse impact on the hiring, promotion, or other employment or membership opportunities of members of any race, sex, or ethnic group will be considered to be discriminatory and inconsistent with these guidelines….”

And there you have it; a warning from a huge number of Federal agencies that if you employ a hiring procedure which has a purely statistical adverse impact, you are toast. And I shall for the purpose of brevity abstain from quoting the innumerable other things in these regulations which simply reconstitute that.

However, appropos again of talking about whether a “national goal” of diversity exists I would note where “intent” comes in because it is very interesting: In Section 13 of these regulations it talks about affirmative action and specifically says therein as follows:

“Nothing in these guidelines is intended to preclude the use of lawful selection procedures which assist in remedying the effects of prior discriminatory practices, or the achievement of affirmative action objectives.”

In other words, if a company’s hiring practices *do* show an adverse impact, *but* they are for “the achievement of affirmative action objectives,” then *this* is not illegal. And as we saw with that _Bollinger_ University of Michigan Supreme Court case, it has been held that at least as to higher education, it can discriminate against whites if its purpose is to achieve diversity. Remember Sandra Day O’Connor’s celebrated line in her majority opinion to the effect that “well, maybe we’ll outlaw this in 25 years or so, but it’s okay now”?

So anyway, on to our smaller point about the ability of one to win any number of kinds of discrimination cases solely through the use of statistical evidence and your challenge to me to show that this is okay.

Actually, ordinarily, that would be tough because, as I said in my earlier post, it’s just a routine, understood and utterly unremarkable idea that one can win cases with purely circumstantial evidence. Again, even murder cases. And thus as you can imagine who challenges this? To the law and the courts, proofs are proofs.

Here however with five minutes of work I can find two Supreme Court case specifically validating my earlier supposition:

In TEAMSTERS v. UNITED STATES, 431 U.S. 324 (1977), after talking about the role of statistics in discrimination cases *generally* (and not just employment discrimination cases)—and then even jury selection discrimination cases too— the author of the majority opinion Justice Stewart specifically said as follows:

“Statistics are equally competent in proving employment discrimination.”

And indeed NS, if you just glance at any damn near any discrimination law book you will see almost as a matter of rote that of *course* statistics play a simply huge role in many many such cases because of course many if not most discriminators don’t go about announcing that they intended to discriminate. And of course in big big cases especially, where a huge company has been accused of systematically practicing discrimination over an extended period of time, well my goodness of course you can see that if it *wasn’t* for statistical evidence damn near none of those cases could even be brought. And this too is commonly observed.

Plus, with just an offhand glance, I would also note to you the Supreme Court case of HAZELWOOD SCHOOL DISTRICT v. UNITED STATES, 433 U.S. 299 (1977).

This was a case about alleged discrimination in the hiring of teachers and in it Justice Stewart again wrote the majority opinion (1977 was a big year for discrim cases apparently), and he essentially laid out what is the somewhat involved matter of what lawyers call “burden shifting” in many discrimination cases.

“Burden shifting” involves the question of which party has the burden at what point in a case of doing what to win, or at least to continue. And as to the most important *first* burden of a plaintiff in such discrimination cases Justice Stewart happened to say as follows:

“Where gross statistical disparities can be shown, they alone may in a proper case constitute *prima facie proof* [433 U.S. 299, 308] of a pattern or practice of discrimination.” (Emphasis supplied.)

Now of course one can observe that defendants are free thereafter to bring forth whatever evidence that is admissible to try to refute this, but Justice Stewart’s words are clear as a bell: If they do not “statistical disparities … alone” can constitute proof of discrimination, period.

As noted I found this with a mere five minutes of flipping damn near random discrimination-related pages and I have no doubt there’s much more even though, as I also noted, to the law generally proof is proof, circumstantial or not, and so it’s just not really remarked upon much. When you can be convicted of murder, and I suppose even sentenced to death when that sentence is applied, based solely on circumstantial evidence, well I think that says it all.

But, getting back to that “meta” issue of whether diversity is a “national goal” I think that Mr. Dale’s link is even more important than these court cases that we were talking about because there we see the regulations the government itself (and not just some private person) is imposing across the board on our huge huge corporations with their millions upon millions of employees. And as we saw, a pure and simple “disparate [i.e. statistical] impact” in one’s hiring procedures is enough to bring the force of the entire Federal government down upon one’s head. And you can well imagine that same is not lightly ignored, especially considering that, in general, not just compensatory damages and attorneys fees are awardable against discriminators, but punitive damages are too.

Lastly, you are right that no President has to my knowledge ever said that “diversity is our national goal.” (Although I wouldn’t be surprised if one or the other has come really close.) And you of course are entitled to whatever standard you wish in judging whether a national goal has been established. But, again, I just think your standard is a little high, and indeed not even all that valid. A President can say whatever he wants; what if Congress has disagreed?

Moreover of course politicians can be a bit promiscuous with words, can’t they? Do you doubt, for instance, that we could find any number of Presidents and Congress-creatures too for that matter who have said that “energy conservation is one of our highest national goals”? And yet our taxes on gasoline are as I understand it about the lowest in the world. So is this really a true “goal” at all, or merely puffery?

I think a more *systemic* analysis has more validity then, since we are passing judgment on an entire system, and I can’t think of anything more validly systematic than looking at where the purely rhetorical ends and the reality is announced which is where the nation gets down to writing what it finds is legal and what is illegal.

Cheers,