If your organization has a policy or practice that doesn’t benefit minorities equally, watch out: The Obama administration could sue you for racial discrimination under a dubious legal theory that many argue is unconstitutional.
President Obama intends to close “persistent gaps” between whites and minorities in everything from credit scores and homeownership to test scores and graduation rates.
His remedy — short of new affirmative-action legislation — is to sue financial companies, schools and employers based on “disparate impact” complaints — a stealthy way to achieve racial preferences, opposed 2 to 1 by Americans.
Under this broad interpretation of civil-rights law, virtually any organization can be held liable for race bias if it maintains a policy that negatively impacts one racial group more than another — even if it has no racist motive and applies the policy evenly across all groups.
This means that even race-neutral rules for mortgage underwriting and consumer credit scoring potentially can be deemed racist if prosecutors can produce statistics showing they tend to result in adverse outcomes for blacks or Latinos.
Already, Attorney General Eric Holder has used the club of disparate-impact lawsuits to beat almost $500 million in loan set-asides and other claims out of the nation’s largest banks.
In addition to the financial settlements — which include millions in funding for affordable-housing activists — Bank of America, Wells Fargo and SunTrust have all agreed to adopt more minority-friendly lending policies.
Though the administration seeks equal credit outcomes, regardless of risk, across the entire banking industry, it doesn’t have to sue every bank to achieve its goal. As a prophylactic against similar prosecution, IBD has learned the American Bankers Association recently advised its 5,000 members to give rejected minority loan applicants a “second look,” which it says “can result in suggested changes in underwriting standards.”
Also, the administration sent a chill through the financial industry earlier this year when it announced its new credit watchdog agency will join Justice, as well as HUD, in using the disparate-impact doctrine to enforce civil-rights laws.
Consumer Financial Protection Bureau chief Richard Cordray warned companies the agency will “protect consumers from unfair lending practices — as well as those that have a disparate impact on communities of color.” He added:
“That doctrine is applicable for all of the credit markets we touch, including mortgages, student loans, credit cards and auto loans,” as well as small-business loans.
For the first time, the nation’s consumer credit reporting agencies, including Equifax, Experian and TransUnion, will come under federal review. CFPB examiners will subject these companies and others to an “effects test” to make sure credit transactions are racially balanced.
Those who reject minority applicants for credit cards or charge them higher loan rates had better be prepared to prove to Cordray’s diversity cops they aren’t racist. Many have already decided it’s safer to give black and Latino applicants preferential treatment, which of course is racism of another kind.
Other targets of the administration’s “racial justice” juggernaut include: standardized academic testing, professional licensing examinations, employee background checks, voter ID requirements, student disciplinary codes, prison sentencing guidelines — you name it.
The goal is to equalize outcomes based on race without regard for performance or merit.
According to Roger Clegg, president of the Center for Equal Opportunity, President Obama is committed to “aggressively pushing the ‘disparate impact’ approach to civil-rights enforcement” through which “the federal government insists that the numbers come out right — even if it means that policemen and firefighters cannot be tested, that companies should hire criminals, that loans must be made to the uncreditworthy, and that — I kid you not — whether pollution is acceptable depends on whether dangerous chemicals are spread in a racially balanced way.”
Last month, moreover, the Education Department pressured the Oakland school district to impose “targeted reductions” in the number of black students suspended.
The department charged that Oakland’s disciplinary policy has a “disparate impact” on African-American students, who are suspended at higher rates for violent behavior.
The Oakland case is the first of some 20 such investigations of school districts across the U.S. “The Obama administration is pressuring school districts not to suspend violent or disruptive black students if they have already disciplined ‘too many’ black students,” said Competitive Enterprise Institute counsel Hans Bader.
Education is also investigating a “disparate impact” complaint recently filed by the NAACP alleging the entrance exam used by selective New York City high schools illegally discriminates against blacks.
Through disparate impact suits, Holder has forced banks to adopt racial lending quotas and even open branches in minority neighborhoods.
He’s authorized five more lending-discrimination suits, while opening another 30 investigations against banks. And he’s just getting warmed up.
“The question is not does (affirmative action) end, but when does it begin?” Holder said in February at a Columbia University forum. “When do people of color truly get the benefits to which they are entitled?”
Banks had hoped the Supreme Court would declare his actions unconstitutional.
But a landmark disparate-impact case was scuttled at the last minute this year when the petitioner withdrew it under pressure from Holder’s civil-rights chief.
Congress is probing the unusual arm-twisting — which included what appears to be a corrupt quid-pro-quo bargain — that led to the case being dropped.
Most agree that had the Magner v. Gallagher case gone forward, the high court would have struck down the use of disparate impact and effectively shut down the administration’s witch hunt against lenders.
On the campaign trail, Obama was mum about his disparate-impact strategy and rarely talks at all about race.
He’s no doubt aware of polling in his last presidential bid which found 56% of voters harbored fears he’d favor African-Americans. But his 2006 writings inform us.
To close the “stubborn gap that remains between the living standards of black, Latino and white workers,” then-Sen. Obama proposed “completing the unfinished business of the civil rights movement — namely, enforcing nondiscrimination laws in such basic areas as employment, housing and education.”
He added: “The government, through its prosecutors and its courts, should step in to make things right.”