SCOTUS and the Law of Unintended Consequences

Earlier this week I put up THIS post about how the United States Supreme Court has agreed to hear a case which has the potential of resulting in the curtailing, or perhaps even the rescinding, of the Court’s previous invention of the “disparate impact” doctrine.  The doctine was initially established in a case known as Griggs versus Duke Power Company, from 1971.

A couple of months ago, in the September issue of The American Spectator, Washington Free Beacon reporter and American Spectator contributor Bill McMorris put up an excellent article about Griggs v. Duke Power, and how, over the course of the last 40+ years it has been subject to the law of unintended consequences.  McMorris article is entitled “How The Supreme Court Created The Student Loan Bubble”, and here’s a taste:

The saga began in 1969 when Willie Griggs, a black man born in the segregated South, decided he was overdue for a promotion.  In order to get one, per Duke Power Electric Company rules, he had to pass two aptitude tests and possess a high school diploma.  Griggs smelled racism.  The tests surveyed employees on basic math and intelligence questions.  None of Duke’s fourteen black workers passed.  Griggs and twelve others sued the company for discrimination.  A district court and federal appeals court accepted Duke’s claim that the tests were designed to ensure that the plant operated safely.  Duke bolstered its case by pointing out that it offered to pay for employees to obtain high school diplomas and that white applicants who failed to meet the requirements were also denied promotions.

The Supreme Court wasn’t buying it.  This was North Carolina after all.  <snip>  Griggs found that if blacks failed to meet a standard at a higher rate than whites the standard itself was racist—a legal doctrine known as disparate impact.


“Despite their imperfections, tests and criteria such as those at issue in Griggs (which are heavily…dependent on cognitive ability) remain the best predictors of performance for jobs at all levels of complexity,” University of Pennsylvania Professor Amy Wax has found.


“Most legitimate job selection practices, including those that predict productivity better than alternatives, will routinely trigger liability under the current [Griggs] rule,” Wax wrote in a 2011 paper titled “Disparate Impact Realism.”

The solution for businesses post-Griggs was obvious: outsource screening to colleges, which are allowed to weed out poor candidates based on test scores.  The bachelor’s degree, previously reserved for academics, doctors, and lawyers, became the de facto credential required for any white-collar job.

We know what happened next.  The federal government’s provision of Pell Grants and low interest student loans resulted in an abundance of funding to pay for college tuition and study materials, which in turn allowed the higher education institutions to both raise tuition and create frivolous and/or easy majors (Women’s Studies, African Studies, Native American Studies, Underwater Basket Weaving) to entice even the lazy students into signing up.

McMorris’ article at The American Spectator is HERE, and the full article is well worth the time it takes to read it.

The current case to be taken up by SCOTUS is known as Texas Department of Housing and Community Affairs versus The Inclusive Communities Project, Inc.  It is a very important case because of the potential for the Court to back away from the “disparate impact” doctrine established by Griggs v. Duke Power.  For more on the current case, check out THIS article on the ThinkProgress website from earlier this month.