The Magazine


The Courts Declare Themselves Guilty of Bias

Dec 1, 1997, Vol. 3, No. 12 • By HEATHER MAC DONALD
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In proposing solutions to this plague of discrimination, the task force is just as creative with the facts. Take its suggestions regarding law clerks. As always, the task force starts from an unpromising set of data: First, the diversity of law clerks in the Second Circuit equals or exceeds that of the law schools. Second, only about 3 percent of the clerks surveyed said they had shied away from a particular judge because of his reputation for sexism or racism. Nevertheless, the task force calls for race- and gender-based outreach programs for law students. Why? Because the applicant pool for clerks may be limited by the "applicant's perception that his or her gender or race is a negative factor for certain judges." Remember: Only 3 percent of the clerks had professed such negative "perceptions." It takes only 3 percent, however, to trigger a finding of a hostile environment and a remediation agenda.

No diversity tract would be complete without a call for diversity training and more anti-bias bureaucracy. As usual, the task force reaches these cherished desiderata in the teeth of contrary evidence. Managers in the court system have received, in the report's words, "few, if any, complaints of discrimination or harassment." Does this mean that the courts are in fact treating their employees equitably? By no means. The task force promptly concludes that "employees' fear of retaliation may cause underreporting of discriminatory or harassing conduct." The task force even has data to back up its speculation: Four percent of the survey respondents said they had remained silent about bias because of fears of retaliation! That's all that's needed to march the entire circuit off to diversity training and to saddle it with the deadening weight of additional affirmative-action red tape.

Like an obsessive-compulsive, our culture can't stop frantically tracking down phantom bias, prerequisite as it is for the entire regime of preferences. That the courts themselves have taken up the hunt and cast aside their traditional allegiance to reason and truth is a reminder of how far this country has moved from its original ideals.

Heather Mac Donald is a contributing editor of the Manhattan Institute's City Journal.