BuckeyeBlog

In his Sunday column, George Will writes about a study by Byran O’Keefe and Dr. Richard Vedder (an Ohio University professor and scholar with the Buckeye Institute) that illustrates how the Supreme Court’s expansion of the concept of “disparate impact” affected higher education. In 1971 the Supreme Court expanded the 1964 Civil Rights Act to outlaw any employment qualification tests that may have a “disparate impact” on minority groups, regardless of whether these tests were actually discriminatory.

Mr. O’Keefe and Dr. Vedder illustrate how this led to more employers requiring college degrees for employees. As Will puts it:

This is, of course, just one reason college attendance increased from 5.8 million in 1970 to 17.5 million in 2005. But it probably had a, well, disparate impact by making employment more difficult for minorities. O’Keefe and Vedder write:

“Qualified minorities who performed well on an intelligence or aptitude test and would have been offered a job directly 30 or 40 years ago are now compelled to attend a college or university for four years and incur significant costs. For some young people from poorer families, those costs are out of reach.”

Indeed, by turning college degrees into indispensable credentials for many of society’s better jobs, this series of events increased demand for degrees and, O’Keefe and Vedder say, contributed to “an environment of aggressive tuition increases.” Furthermore they reasonably wonder whether this supposed civil rights victory, which erected barriers between high school graduates and high-paying jobs, has exacerbated the widening income disparities between high school and college graduates.

Griggs and its consequences are timely reminders of the Law of Unintended Consequences, which is increasingly pertinent as America’s regulatory state becomes increasingly determined to fine-tune our complex society. That law holds that the consequences of government actions often are different than, and even contrary to, the intended consequences.

Blogger-extrordinaire-and-pretty-good-law-professor-to-boot Glenn Reynolds tells Heller celebrants, “Don’t get cocky.”

Reynolds argued that the Heller litigation was a mistake, on the grounds that there would not be five votes to protect the Constitution on the Supreme Court. (I agreed, and was scared to death Heller would be an outright loss.) He was wrong on that point (as was I), but not by much. (The problem is Justice Kennedy. The NRA, in a stunt, filed suit to overturn the Chicago gun ban the day Heller came down. Can Kennedy be counted upon? Hardly. Moreover, who knows what the court will look like one to 10 years hence? All of these cases can be, indeed must be, litigated over a long time period to get a ruling out of the high court. But the state of individual rights is precarious, and remains as likely to be lost as affirmed in the years to come.)

But here’s an interesting point in his column: Limiting the Commerce Clause is another fundamentally important legal action to take, one that will take years to implement. The Rehnquist Court threw the door to this wide open. What’s missing, Reynolds argues, is the hordes of public interest lawyers to make sure the judiciary follows through:

In the 1990s the Supreme Court decided a series of cases narrowing Congress’ powers to regulate all sorts of things under the rubric of “interstate commerce.” But there were no hordes of public-interest lawyers to pick up on those decisions and bring new cases in the lower courts.

Without that pressure, the lower courts were free to ignore the Supreme Court’s efforts to cut back on federal meddling – and that’s what they did, to the point that some called it a “constitutional revolution where no one showed up.”