Beware of the Bipartisan Privacy Act

It looks like, Reason magazine warns, an end run around the Supreme Court’s ruling against racial quotas in our universities.

AP/Jose Luis Magana, File
Demonstrators protest outside of the Supreme Court at Washington after the Supreme Court struck down racial preferences in college admissions. AP/Jose Luis Magana, File

Is Congress plotting an end-run around the Supreme Court by moving to restore racial preferences in college admissions? That’s the claim from the libertarians at Reason, which warns of danger lurking in the fine print of “a very quiet part” of  a pending “bipartisan ‘privacy’ bill.” The measure, Reason reckons, would “quietly overrule the Supreme Court’s Harvard decision” and “impose identity-based quotas on a wide swath of American life.”

If Reason’s reporting is correct — and it has a fine record — the bill means racial preferences wouldn’t be revived only at universities, but would “impose race and gender quotas” on “practically every private and public decision that matters to ordinary Americans.” Yet this legislative scheme appears to be flying under the radar, Reason explains, because it’s “packaged as part of a bipartisan bill setting federal privacy standards.”

The proposed bill has a harmless-sounding name, the “American Privacy Rights Act of 2024.” It has support from a Republican congresswoman, Cathy McMorris Rodgers, and a Democratic senator, Maria Cantwell. The problematic “core provision” in the bill, Reason suggests, would impose what lawyers and judges call a “disparate impact” test on “practically every institutional decision of importance to Americans.”

“Disparate Impact,” Reason explains, is legal jargon for a principle that tends to lead to racial quotas. That’s because it implies that any outcome that “disproportionately” affects “racial, ethnic, gender, and other protected groups” is ipso facto a form of discrimination. “Savvy employers soon learn,” Reason writes, “that the easiest way to avoid disparate impact liability” is to create a work force “balanced by race and ethnicity” — a quota system for hiring.

The Congressional attempt to defy the high court is all the more galling for coming barely a year after the Nine’s affirmation of a colorblind constitution in Students for Fair Admissions v. Harvard. Chief Justice Roberts, writing for the majority, found that racial preferences in admissions violated  the Equal Protection Clause of the Constitution. “Eliminating racial discrimination,” the chief justice declared, “means eliminating all of it.” 

Congress isn’t alone in having trouble accepting the high court’s prohibition on racial preferences. The ink hadn’t dried on the opinion when President Biden complained it indicated “this is not a normal court.” He lamented that “discrimination still exists in America.” This overlooks the fact that such discrimination is even worse when it is sanctioned by the government — or even when it’s enshrined in law.

Edward Blum, who led the Fair Admissions suit against Harvard, shares the concerns aired in Reason. In an interview with our M.J. Koch, he characterizes the measure as “a devious attempt to reinstate racial classifications and preferences in college admissions.” Feature its section 13, which forces companies and nonprofits to tailor algorithms — online rules and procedures — to avoid “harm” from disparate impacts based on factors like race.

“The closer one looks,” Reason observes, “the worse it gets,” as the bill “expands the sweep of quotas.” It would require, within two years of passage, institutions to reduce any disparate impact caused by algorithms affecting “access to housing, education, employment, healthcare, insurance, or credit.” It would apply to nearly every business in the country, Reason warns: “No one escapes.” It’s as chilling a threat to America’s colorblind ideals as they come.

It’s not our intention, in marking Reason’s warning, to belittle the question of racial discrimination. We grasp that America has a long way to go, yet. Yet we fly the flag of a Sun that stands for all and that was the first general interest newspaper in America to declare for abolition, something it did in its fourth issue. We’re with millions of Americans who have concluded that quotas are not the way to reach the ideal of liberty. Better to shine for all.

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