The Justices Are Finally Colorblind

The EEOC and other such guidelines require virtually all decision makers subject to discrimination law—employers, lenders, landlords, universities and others—to pursue racial balancing objectives. The mechanism is straightforward: Disparate impact constrains and often forbids the use of any criterion that has a statistically different effect on a particular race, making it virtually impossible to rely on background or credit checks, verbal or written aptitude tests or academic disciplinary records. Among other things, the EEOC’s guidance warns employers against basing decisions on criminal background checks due to “problems that may be more common among people of a certain race.”

As the OLC opinion concluded, this approach “structurally compels the very racial discrimination that the Constitution forbids” because it operates as a “racial thumb on the scales”

https://www.wsj.com/opinion/the-justices-are-finally-colorblind-53c4296a