Disparate impact and the destruction of meritocracy (04-25-2025--Hour2)

What's going on. Thank you so much for listening to this podcast. It is heard live every day from noon to three on WBT Radio in Charlotte. And if you want exclusive content like invitations to events, the weekly live stream, my daily show prep with all the links, become a patron, go to dpekclendershow dot com. Make sure you hit the subscribe button. Get every episode for free right to your smartphone or tablet. And again, thank you so much for your support. Lots of legal stuff today, I can't help it. Trump does the executive orders, Lefty sue, and then we get all of these you know, power drunk judges. Now, there is an executive order that I am particularly interested in. Not a lot of people are talking about it, mainly because it seems boring. I know, it's a heck of a tease, trust me, though it is not. It is disp parrot impact, disparate impact. Okay, So this is a is a whole theory and you may not know this, but this thing is embedded in so much of our case law. And what it means, basically is you don't have to prove somebody's intent. All you have to do is prove that the outcomes of a policy, you know, hiring practice, whatever, if the outcome has differences that are demographically identifiable. In other words, you want to hire a bunch of firefighters, and you're going to say, you know what, we want to make sure that a firefighter is able to, you know, grab and drag a limit lifeless body out of a burning house. And so we want to make sure that the firefighters are able to carry dead weight in the amount of what the average American might weigh, so something like, you know, three hundred pounds or so that's I don't actually know if it's three hundred, it's anyway. So you want to make sure that the firefighters are fit enough to be able to, you know, dead drag a bunch of weight. So you set a rule, you set up a policy, a requirement, a standard that says you have to be able to lift this amount of dead weight two hundred and fifty pounds. And when you go in then and you get a bunch of people to that are you know, taking the entrance exammed in the firefighting academy. And if anybody can't lift that weight, then you don't get to be a firefighter. That's the deal. Come back when you've bulked up. You know. But then what you start seeing is that all of your firefighters are dudes. And that's a problem, you see, because that would be disparate impact. You set a policy up that said you got to be able to lift two hundred fifty pounds, but that means virtually all of the female candidates that apply cannot lift that amount of weight. Because this may come as a shock, by the way, but men and women are different, and so a lot of women cannot lift two hundred fifty pounds. A lot of men can't lift it either. That's the point though, right You set the standard for what you are expecting and what you need for that particular job. So if you can't lift to fifty, then you don't get to be a firefighter. But if you've got first person syndrome and you think everything around the world should be, you know, tailored to your experience, and you really want to be a firefighter, but you can't lift two hundred fifty pounds, and you have happen to be a female, And you can then look at the recruitment classes going back a decade, twenty years, thirty years, whatever, and oh, look at this, there have been no women or only one woman could ever become a firefighter. That is a disparate impact on women than men. Therefore, that is de facto proof of discrimination. And now you have a cause to sue disparate impact. This is everywhere, It's everywhere. I have it here. Well, let me do this. It's a very lengthy executive order. I'll just read this part of it. A bedrock principle of the United States is that all citizens are treated equally under the law. This principle guarantees equality of opportunity, not equal outcomes. It promises that people are treated as individuals, not components of a particular race or group. It encourages meritocracy and a colorblind society, not race based or sex based favoritism. Adherence to this principle is essential to creating opportunity, encouraging achievement, and sustaining the American dream. But a pernicious movement endangers this foundational principle, seeking to transform America's promise of equal opportunity into a divisive pursuit of results preordained by irrelevant, immutable characteristics, regardless of individual strengths, effort or achievement. A key tool of this movement is disparate impact liability, which holds that a near insurmountable presumption of unlawful discrimination exists where there are any differences in outcomes in certain circumstances among different races, sexes, or similar groups, even if, even if there is no facially discriminatory policy or practice or discriminatory intent involved, and even if everyone has an equal opportunity to succeed. Right, if you can lift the two hundred and fifty pounds you get in, you could be a firefighter. If you cannot, then you don't. And the intent doesn't matter, even if, as I just outlined in that example, even if the people that created the standard never made any mention of we want to make sure no women get to be firemen, you know, even if they were just like, hey, average American weight is two fifty, we should make sure people can lift two fifty. Oh, I like that. That's a good standard. Put that in, and it's a very logical kind of a standard to apply. The intent doesn't matter. The fact that they were not acting in some sexist, misogynistic way doesn't matter. There's no evidence of it doesn't matter. All that matters is the disparate impact. By the way, this was at play in the redistricting lawsuits and litigation in North Carolina, because even when the North Carolina lawmakers, when they drew their congressional maps, even though they never said anything about race, they did it based on partisan affiliation, the Democrats on the Supreme Court still said disparate impact. Basically, well, the impact of the outcome is still it's still, you know, racially identifiable congressional districts. She got too many black people there, too many white people there. Well, how much is too much? I don't know, but I'll know when I see it. And so they threw out the maps disparate impact. And so Trump's executive order on this let me go to hang on. Let me go to Alison Sohman. She's a senior legal fellow at the Pacific the organization called Pacific Legal. She says, there are two types of federal civil rights laws. One is disparate treatment, which is a prohibition against actual discrimination. Right when you actually say, like, oh, I don't want to hire that woman as a firefighter because I don't like women like that would be disparate treatment, and that's more difficult to prove. Disparate impact prohibits practices that have an adverse effect and are not justified by business necessity. The problem is that virtually all employment or housing or educational practices have an adverse effect on some group covered by civil rights law. Right. This also has a connection to the affirmative action cases Harvard UNC where they were Harvard's turning away Asian applicants at far greater rates in order to achieve racial quotas, and they got smacked down for that. Harvard Nuancy smacked down for that because if they are trying to apply a disparate impact analysis to their admissions policy, and you just took everybody that had the highest SAT scores, the Asian applicants would be like almost one hundred percent of the incoming freshman class. And so they're like, well, we can't have that. So we're going to say no to a whole bunch of Asian applicants even though they are more qualified by our standards. We'll create different standards then, so we have this outcome that looks balanced and that'll keep the FEDS off our backs. See what I mean, this is so corrupting. I understand. I will give you the benefit of the doubt and say that the intention behind it was noble, but it is so twisted now, just like well everything else GOVCO does, it just gets twisted, all right. So spring is here a time of renewal and celebrations. You've got graduations, weddings, anniversaries and especial days for mom and dad. 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Dot Com John Sexton, writing at hot air dot com, one of my favorite sites. Trump's latest executive order takes on disparate impact theory. The order requires several actions. The order revokes presidential actions that approved of disparate impact liability and sets in motion broader reform. It directs all agencies to de prioritize enforcement of statutes and regulations that include disparate impact liability. So, in other words, he can't wipe this off the books, right, but he can say we're not going to focus on this, We're not going to do anything about it. The order instructs the Attorney General to repeal or amend all Title six regulations that contemplate disparate impact liability, and it directs the administ to assess all pending investigations, lawsuits, and consent judgments that rely on the theory of disparate impact liability and take appropriate action. Now Over at the City Journal, Heather MacDonald, she writes that this theory holds that if a neutral, color blind standard of achievement or behavior has a disproportionately negative effect on underrepresented minorities, It violates civil rights laws. It has been used to invalidate literacy standards, math standards for police officers and firemen, cognitive skills and basic knowledge tests for teachers, the use of SATs and college admissions, the use of grades for medical licensing exams. Credit based mortgage lending. Think about that, Like, you can't look at a credit score if you want to lend somebody. What's the average price of a home now? Seven billion dollars or something like, you can't look at their credit score. The ability of sorry, the ability to discipline insubordinate students. Yeah, this is a thing, by the way, the order, Yeah, here it is. The second executive order announced today deals with disparate impact in school discipline, an area in which disparate impact enforcement by the Department of Education had a particularly harmful impact on students, teachers, and schools. The executive order tells the Department of Education to change course and stop pushing racial quotas in student discipline. In other words, you set a standard you can't beat up another kid in school, right, seems like a pretty good standard. No beating up your fellow classmates. Okay, Well, then when and if you beat up your fellow classmate, You're going to get suspended. Okay. Well, then after a year, two years, whatever, of the policy being implemented, you start seeing that, say, sixty percent of the suspensions for beating up other students, sixty percent of those suspensions are black kids. And this has been This is what the school discipline issue is about. The disparate impact is that more black students are suspended when compared to their population in the school. And so disparate impact theory says, well, that's proof of discriminatory policies. Even if the intent is to, you know, not have kids beating up their classmates. The disparate impact is that we're suspending too many kids of a certain race. Therefore, don't suspend as many kids of that race, or start suspending more kids of a different race, even if they maybe haven't been doing the behavior that we don't want they Okay, maybe they didn't beat up somebody, but maybe they did something else. We'll suspend them for that so we can boost up those racial quotas. See what I mean, it gets so twisted. What else? Criminal background checks for employees and renters. McDonald goes on to say it has been used to eliminate prosecution for a large range of crimes, including shoplifting, turnstile jumping, and resisting arrest, to end police tactics such as proactive stops like stop and frisk, stop, question and risk, those types of things. That's why they unwound those tactics, and they've used it to purge safety technologies like shot spotter and speeding cameras from police departments. In none of those cases has it ever been demonstrated that the disfavored standard was implemented in order to exclude anybody, whether it's blacks, minorities, women, dudes, whatever. There was never any proof that it was targeting people. Oh but we know that's what they were doing. That's essentially what this disparate impact theory does. It's like, well, you never said that's who you were targeting, but I know, I know that's who you were targeting. The genius, even if it's a diabolical one, The genius of disparate impact theory was that it obviated any need to show discriminatory intent on the part of a targeted employer or institution. See discrimination was simply inferred by the effect of the color blind standard. If you set up a color blind standard, one based only on merit. Right, you want to reward the thing that you are seeking. You want to reward people for an attribute or behavior or perform rmans that you are seeking. I want to make sure the firefighter can carry two hundred and fifty pounds. You can carry two hundred and fifty pounds. You pass merrit, you have the credential I'm looking for. That should be enough. But no disparate impact, says, well, not enough women pass your standard, therefore that's a discriminatory standard. Naturally, the left sees this very differently. Here's a great idea. How about making an escape to a really special and secluded getaway in western North Carolina. 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Cabins of Ashville has the ideal spot for you for any occasion, and they have pet friendly accommodations. Call or text eight two eight three six seven seventy sixty eight or check out all there is to offer at Cabins Offashville dot com and make memories that'll last a lifetime. Obviously, the left sees the disparent impact theory differently. They say it reflects the reality that racism in America often functions structurally, not just on an individual basis. Right, and um, yeah, here it is Historically, disparate impact has been indispensable in cases where intent was difficult or impossible to prove. In the Supreme Court ruling Griggs versus Duke Power Company in nineteen seventy one, for example, the Supreme Court held that an employer's requirement of a high school diploma wasn't explicitly racist, but it disproportionately excluded black applicants and was not related to job performance. So apparently, in nineteen seventy one, Duke Power required a high school diploma, and that's racist. This ruling opened a path to address indirect forms of discrimination that were and still are pervasive. Okay, that's the defense of the disparate impact theory. But Heather MacDonald essentially argues that that case, the Griggs Duke Power Company case, was ruled in error, and Trump is restoring the pre nineteen seventy one understanding of the Civil Rights Act because the Griggs Duke Power case was nineteen seventy one, She writes, it was disparate impact theory itself that constituted a radical departure from the premises of the Civil Rights Act of nineteen sixty four. President Donald Trump merely restores the nineteen sixty four law to its original understanding that pioneering legislation banned intentional discrimination, only disparate impact theory was a judicial amendment that was made six years later in response to how even in nineteen seventy one, finding invidious intentional discrimination was becoming too difficult to satisfy the advocates. See, people wanted to be able to go after institutions, organizations, companies, individuals. They wanted to keep going after their targets for racism, but they couldn't prove it. And so they're like, Okay, well we can't prove it, but we know that's what they're thinking, because look at the outcome. Surely the only reason duke energy or Duke power at the time. Surely the only reason Duke would require a high school diploma is to keep black people from asking for a job there so they don't have to hire black people. And we can't prove that, but we can just look at who has high school diplomas and say, well, the only reason you would do the high school diploma standard is in order to affect the outcome of the hiring process. All right, let me go over to Brett. Hello, Brett, welcome to the show. Hey, how you doing, Pete? I'm doing all right there, you A I'm all right. I agree with you about the high school diploma. Man. I'm a black guy and I have a high school diploma, and I think it's really imperative that you have a high school diploma because nowadays and near fuch, you're going to have to have a hat to diploma to work at Old Jangles, McDonald's anywhere. Man. So wait, you hang on, Brett, You really think that you're going to need a high school diploma to work in fast food? Yes? Man, get to that point, man. I mean, well, I want to get to that point, because. The high school diploma is really imperative. You've got to. I worked in fast food. Have you ever worked in fast food restaurants. When I was in school? But I was in school. I didn't have a diploma. Then, right, right, So you're but by your standard if you think that everyone's going to need a diploma to work in these restaurants, like, I don't know why, why so what? But why do you think that's going to be the case. I mean it might, but high school diploma is imperative, man. You need I agree with that. I mean I did. Look, I completely one hundred percent agree that people should graduate high school, get their diploma. They're going to be much better off if they have a high school to play, Absolutely exactly right. I just don't think that the fast food or any any restaurant really is going to require that because honestly, there's a lot of work in the restaurant, in the restaurant industry that you can do that you don't need a high school diploma to do. Okay, I understand that. I understand that it makes sense. You makes sense, but. It doesn't limit it discriminate. Yeah, it limits you from a lot of things. I think it's discrimination because you don't have a high school diploma. Yeah. I mean some white guys don't have a high school diploma. Yeah, you know a lot of them. But the fact but the fact of the matter is, like I can see where they're coming from, like two parts of it, because if you're black, you don't have a high school diploma, they're not going to hire you. But they have a high school diploma, they might give you a chance. See and therein that So that's at the heart of the disparate impact period is that you're right, is that you're assuming the motive and intention. But I'm really not assuming because it's to happen before. I mean, I don't. I mean, Pete, I don't want to argue with you, man, I know you argue with everybody else. I'm not arguing with you, man. I'm just discussing with you. We're just having a discussion. Yeah, and it's real talk. Because it happens. It happens. Look, Brett, I have no doubt it does happen. I have also no doubt that. I have no doubt that it happens against ugly people too, right. I mean if I'm a restaurant owner and two people walk in and they're both equally qualified, and one is really attractive and one is really ugly, and I got to pick a server to send out to the to the crowd, what do you think I m? Who do you think I might? Pet I get it. That's like, that's like that's like a skinny person a fat person, right. Yeah, people have all sorts of prejudices in their minds. Absolutely, How do you get at that? How do you like? How? Because it's one point. Now what we're going to uh, we're gonna uh what do the hiring for them? Is that? The answer that and we're gonna have quotas for for fat people with thin people, black white, Hispanic like every other like that's and that's where this goes though, That's what I mean, unless you've got somebody like, all right, look, you come in I'm the manager, right, you come in for a job, and I don't hire you, but your buddy who is white. I hire your buddy. And then you see on like my Facebook posts that I'm tweeting all sorts of or I'm posting all sorts of stuff about how you know black people can't be good restaurant workers or something. Now, you would have a case right now, you could say I was not given the job, and this is proof that you know, Pete was prejudiced against me, was discriminating against me for this reason. But if you don't have that information, that evidence, how do you go about proving it? Right? And my thing is, and my thing is, I've never had that problem as a and I have a nice I have a good job. I've never had that problem because because I know how to I guess, articulate myself to talk, right, yeah, I know how to present myself. It's all about a hustle too. Oh, absolutely, you know what I'm saying. I don't I mean, like, I don't care I be fascinating. Whatever. If you can, if you can talk your way in, you can do it. O. That's it, exactly right. You're only great at charisma. See here's the thing, Brett. You do not sound like somebody who self limits himself because of a victim mentality. You don't sound like that, right, and no, right, exactly like, Well, there are a lot of people in our society that that do, of all races and genders and everything. It's this because it's a real pessimism is sort of a default setting for a lot of people, I would say most people, right. And when people start thinking of themselves as the victim of society or institutions or other people and they don't have any evidence of it, they get locked into this way of thinking that I didn't succeed, not because I wasn't good enough, but I didn't succeed because somebody blocked me from success. And one of them I've never thought. I've never thought like that. I know, Brett, But a lot of people do. And that's the thing, Like a lot of people do, and and they self limit, right, they they can't be successful because of it. The fact that you told me what you told me tells me you are not one of those people. So how do we get more people to not see themselves as a victim and more people to think like you? And plus I was raised by I guess older people. My grandmother didn't pick cotton. They was Jim crow ever and all this, you know. And they told me situations, but had never deterred me because they always told me that you're better. If that makes any sense, Yeah. No, right, they said, what is that? What is that? Message? Is that if you work hard, you play by the rules, you will succeed. There's nothing that's going to limit you. And and you'd be amazed how few people ever get that kind of message or encouragement. But but but it's it's still I mean, it's still out here, though you've got to recognize it. Of course you'll look, you'll never you will never be able to rid every human heart of bigotry, hatred, and prejudice. It's, oh, you can't, you can't. It's impossible, right, And so that's why I think the way that you counter this, uh, those people that have that hatred, the way you counter it is to instill in people the message that your grandma instilled in you. And that I always preach to people as well, which is, you are not the victim, and even if you are, you can overcome any overcome right. Hey, listen, And like I tell people, I can, I can get along with the grand Wizard as long as he respects me. Yeah. I don't know, that's that's a bold claim. I don't know if honestly I can get along with a grand wizards long as he respects me. Yeah. Now I hear you and keeps his dues. And his opinions to itself. Yeah, now I hear Well, man, I'm forty seven, man, I'm born and raised in Charlotte. Man, right on. Well, look, Brett, if you keep preaching your message that made you successful, I think that's the path forward. I think that's the way we get to a better place where fewer people see themselves as victims and can no longer achieve, versus your message of you can overcome and you can achieve. You just have to find another way. If you're being blocked by some person with you know, hatred in their heart, you go, you find another way to get you to get to your goal. You can't stop your hustle man. Exactly, Yeah, Brett, I appreciate it. Man, have a great weekend. Man, all right, take it easy. All right. If you're listening to this show, you know I try to keep up with all sorts of current events, and I know you do too. And you've probably heard me say get your news from multiple sources. Why well, because it's how you detect media bias, which is why I've been so impressed with ground News. It's an app, and it's a website, and it combines news from around the world in one place, so you can compare coverage and verify information. You can check it out check dot ground, dot news, slash pete. I put the link in the podcast description too. I started using ground News a few months ago, and more recently chose to work with them as an affiliate because it lets me see clearly how stories get covered and by whom. The blind spot feature shows you which stories get ignored by the left and the right. See for yourself. Check dot ground, dot news, slash pete. Subscribe through that link and you'll get fifteen percent off any subscription. I use the Vantage plan to get unlimited access to every feature. Your subscription then not only helps my podcast, but it also supports ground News as they make the media landscape more transparent. See I'm so glad Brett called because that is the perfect he is. What he was espousing is the antidote to this victim mentality that has now become so widespread in our society at all levels. People thinking that the only reason they couldn't achieve something is because somebody else stopped them from achieving it. Oh, they didn't give me the job, and then you fill in a blank for whatever reason, and that's just an internal reason that you came up with. You have no idea unless that person said I'm not hiring you because you are filling the blank. You don't know. So what do you do when you don't get the job? Do you say, well, that stinks. I wish I got the job, but I'm gonna now try for this other job. I'll make my own job. I'm gonna do this other thing whatever. You find a way around. The only person that can stop you from achieving your goal is you. But so many people they give up. They just give up. They don't believe in themselves because it's easier not to believe in yourself. Let me go over and get John on the program. Hello, John Good what's going on. In your last conversation, you were saying that maybe a high school diploma really isn't so important for medium work such as fast food, and they said and the other thing. But as soon as you were bringing it up, it occurred to me that. There might be other reasons why somebody might. Use the possession of a high school diploma as some kind of metric. Because well, beyond the intellectual I mean, you have to think about it. You know, we in this country, we provide a free education all the way to the twelfth grade. And if somebody did not avail themselves of something that's free, you have to ask yourself, you know, what is the motivation level. Of this person? Sure, so maybe maybe the perspective employer would use that as a litmus for can this person finish what they started? Absolutely, I don't find that to be in conflict though with what I with what I said, because Brett had said he thought that fast food jobs would require high school diplomas, and I said, I don't. I don't know if that would be true. I disagree because I've worked in many restaurants in my life, and I did so before I had a high school diploma. So I don't know if they would ever enact that as a requirement. Some might, I don't know, some might if they wanted to, you know, attach that to their applications for the reason you articulated. Sure they could, but it would also then screen out a lot of people that they, you know, might otherwise need to fill their ranks to do tasks that do not actually require a high school diploma. If I can get somebody trained up on the fry station and they're basically making French fries for eight hours a day, right, and that didn't take a lot of time for me to train them. And if they're going to be gone in six months because they don't they have a problem finishing what they start, then that may be a cost of doing business for me. And that makes sense. It doesn't matter if they have high school diploma, because I can throw somebody else on the fry station, right. So that's all I was saying. Yeah, I mean some jobs that you don't need like a college diploma for that someone you might not need you might not need a high school diploma for. And if a business needs people more than they want that standard that you outlined, then they'll then they won't put that as a requirement, but that'll be up to the businesses to do. Now that being said, people should finish high school. Absolutely, it'll keep you out of poverty. Yeah, thanks John. Yeah, it's it's one of the it's one of the key components to stay out of poverty or get out of poverty. Finish high school, have a job, any job, and don't get pregnant before you get married, after you have your high school diploma. You do those three things and it's like single digit percentage chances that you'll be in poverty. All right, let me talk with Steve. Hello, Steve, Welcome to the show. Thanks Pete, thanks for taking the call. Sir. I'm involved with something I want you to be aware of. It's called Ambassadors of Compassion, and it's all about teaching kids in high school the skills they need to deal with whatever life throws at them. And it's having a major impact and keeping kids in high school and keeping them out of jail. Frankly, Ambassadors of Compassion, that's correct. Where are you guys operating? Well, the primary location is in southern California, but they've done over one hundred thousand kids nationwide and the changes in the behavior of the kids is documented and remarkable. It's been looked at by pros who investigate things like this and said it's the best thing they've ever seen. I have volunteered to bring it to Charlotte. I'm a retired guy. I've been doing it for about two years. We are now getting traction at CMS and UH. I just want people to know there's a real program out there that that it's an eight week program takes kids through through uh actually getting past the pain. Most of these kids are in a lot of pain. What is the Yeah, absolutely, I agree with that. The what is this? The is this a program? I'm trying to remember I went years ago to a program that seems very similar. I'm trying to remember. It's like the it was like the son of a famous guy who started this program. It's not the leadership something gosh, I'm trying. To buy, but it was this is the son of a famous guy who started this. Okay, well who was it you heard of? It's Dave Hannah is the famous guy. The son is Eric Hanna. Dave Hannah started athletes and Action in the mid sixties. UH, and to get this kind of training out to the world and and he's been you know, it's hugely successful. Gotcha. All right, Ambassadors of Compassion. Thanks Steve, I appreciate it, and good luck to you and your work Ambassadors of Compassion. I'm trying to remember there was that might have been it, or maybe it's another one, but I went to one of the kickoffs. I think it may have been up in Asheville though, and they were trying to get it implemented in the schools and it's a voluntary program and kids go through it and they, yeah, the behavioral differences and then the academic performance that follows is remarkable. All right, that'll do it for this episode. Thank you so much for listening. I could not do the show without your support and the support of the businesses that advertise on the podcast, so if you'd like, please support them too and tell them you heard it here. You can also become a patron at my Patreon page or go to thepetecleanershow dot com. Again, thank you so much for listening, and don't break anything while I'm gone.