In October, when Fisher was being argued before the Supreme Court, Justice Scalia was concerned with how the University of Texas determined it had “enough” minorities in each classroom. He asked, “how do[es the University] determine when classrooms are diverse? … [Do] they go about, classroom by classroom, deciding how many minorities there are?” The government answered that it relied on how a student “self-identified.” That is, if a student said she was white, she was counted as white. If she said she was black, she was counted as black. [My colleague Jonathan Wood has already pointed out the absurdity of this argument.] Of course, Justice Scalia’s question was rhetorical. He did not actually think that the University would send a “race rater” to the classroom to count the various skin colors sitting in Biology 101. Such a position would be ridiculous. Right?
Not so fast. In EEOC v. Kaplan Higher Learning Corp., the Obama Administration is suing Kaplan for running credit checks on employee applicants. Prior to 2004, Kaplan had learned that some of its employees had misappropriated student payments. To provide safeguards against this behavior, Kaplan began screening its applicants for major red flags in their credit history. The Obama Administration sued Kaplan, arguing that it cannot use credit checks, because use of credit checks has a disparate impact on black applicants.**
There was one major problem with the government’s argument. Kaplan’s applications for employment do not ask for a person’s race. Kaplan had absolutely no data to determine if the credit checks were harming black applicants more harshly than white applicants, because race was wholly irrelevant to Kaplan. Undeterred, the Obama Administration subpoenaed the DMV records of applicants who had been denied employment with Kaplan. It then hired a group of economists “experts” to determine whether the applicants “looked” like individuals of a certain race. Then, based on the perceived skin color of the individuals in their DMV photos, the Administration determined that Kaplan’s credit checks had a disparate impact on black job seekers.
Fortunately, the Court rejected this “evidence” outright, holding that the EEOC “fails to present sufficient evidence that the use of ‘race raters’ is reliable.” Interestingly, the Court also noted that the EEOC itself forbids precisely this type of stereotyping:
In fact, the EEOC itself discourages employers from visually identifying an individual by race and indicates that visual identification is appropriate “only if an employee refuses to self-identify.” … According to the EEOC, it implemented these guidelines not because of the accuracy of visual identification, but to facilitate and respect “individual dignity.” Regardless of the reason supporting the pronouncement, it is clear that the EEOC itself frowns on the very practice it seeks to rely on in this case and offers no evidence that visual means is a method accepted by the scientific community as a means of determining race.
The use of perceived skin color of DMV photos is not just unreliable, it is morally repugnant. To be clear, the government is not concerned with race here, as neither Kaplan nor the government know an applicant’s race. The Administration wants courts to judge the legality of business policies based on the effects those policies have on applicants that “look black.” Instead of ignoring skin color in the application process — as Kaplan does — the government thinks Kaplan should look at the skin color of those applicants before determining the appropriate course of action. This is how the Administration thinks our civil rights laws should work. Instead of moving towards a colorblind society, skin color should be at the forefront of all business decisions.
Unfortunately, the next time a Supreme Court Justice rhetorically asks if the government arrived at its conclusion by visually counting and classifying the skin colors of large groups of individuals, the answer is likely to be, “yes.”
** The opinion contains this interesting fact: “According to the EEOC’s Personnel Suitability and Security Program Handbook, credit checks are required for 84 of the 97 positions at the EEOC.”