National Review Online misrepresented the conclusions of a recent Department of Justice (DoJ) Office of the Inspector General (OIG) report on current hiring practices in the department's Voting Section in order to join the right-wing assault on the Labor Secretary nomination of Assistant Attorney General for Civil Rights Thomas Perez.

NRO's aversion to the effective enforcement of civil rights law is well-established and the outlet's wish that precedent in this area is overturned has been repeatedly stated. In addition to Section 5 of the Voting Rights Act and affirmative action, NRO has also expressed its dislike for the currently constitutional “disparate impact” doctrine. This doctrine proves impermissible discrimination against protected groups by demonstrating the disproportionate effects of challenged policies and laws, an evidence-based approach that has drawn the NRO's particular ire in the area of fair housing. A recent NRO post attempted to recycle these attacks as new ones on Perez by observing not many conservatives go to work for DoJ's Civil Rights Division (CRD).

The NRO accuses Perez of dismissing the fact that not enough conservatives serve in the Voting Section - a “disparate impact” - even though Perez enforces “disparate impact” law against banks that impermissibly discriminated against communities of color.

The OIG report referenced by the NRO as evidence for its accusation re-confirmed that under the George W. Bush administration, hiring and retention practices in the CRD were wildly politicized and intentionally discriminated against attorneys considered “liberal.” Under Perez's Bush-era predecessor, Bradley Schlozman, two internal investigations and multiple reports concluded that in addition to favoring conservative credentials over merit, “liberal” applicants and employees were intentionally discriminated against. From the OIG report:

This statistical evidence [of “politicized hiring” “in violation of federal law and Department policy”] was supported by extensive e-mails documenting Schlozman's preference for hiring conservative attorneys and his desire to marginalize attorneys he perceived to be liberal or move them out of the Sections he was supervising. These e-mails included discussions about personnel in the Voting Section. For example, in an e-mail on July 15, 2003, to a former colleague, Schlozman wrote, “I too get to work with mold spores, but here in Civil Rights, we call them Voting Section attorneys.” As part of the same e-mail exchange, on July 16, 2003, Schlozman wrote, “My tentative plans are to gerrymander all of those crazy libs right out of the section.”

In contrast, the OIG report definitively found that under Perez, a “review of thousands of internal CRT documents, including e-mails, hand-written notes, and interviews of CRT staff who participated in the selection of the Voting Section's experienced attorneys did not reveal that CRT staff allowed political or ideological bias to influence their hiring decisions.” Nevertheless, few conservatives were hired.

It was this disparity - that the OIG confirmed was not the result of intentional discrimination - that NRO claims Perez ignored. 

But, as explained in the OIG report and Perez's response to it, by "justif[ying] the resulting skew," Perez was not improperly dismissing concerns about a lack of conservatives serving in the CRD or dismissing this “disparate impact.” He was instead providing a permissible reason for the skew, a standard defense against allegations of impermissible discrimination based on “disparate impact” findings. 

For example, in the fair housing “disparate impact” violations that NRO complained about in previous posts, defendants could have countered the statistical findings of the disparity, despite its negative effect on borrowers of color. As explained in American Banker by George Washington University Professor of Public Policy and Administration Gregory D. Squires, “practices having a negative impact on racial minorities and other protected classes are fully in compliance if they serve a significant business objective and no less discriminatory alternative is available to serve that interest.” The banks who settled their “disparate impact” violations apparently couldn't meet this standard.

Conversely, the permissible reason proffered by the CRD under Perez for the “disparate impact” against conservatives in the Voting Section was accepted by the OIG as legitimate. As the OIG concluded:

[T]he primary criterion used by the Voting Section hiring committee in assessing the qualifications of applicants, namely prior voting litigation experience, resulted in a pool of select candidates that was overwhelmingly Democratic/liberal in affiliation. We were told that few if any conservative organizations provide voting rights experience to their employees, which could have contributed to this effect. We found that prior voting litigation experience was a reasonable criterion to use.

In light of this observed “disparate impact,” a valid reason for the disparity was given. This is how the doctrine is meant to work.

The OIG did suggest that because so few conservatives have civil rights experience, perhaps the CRD should stop relying on “general civil rights/public interest” and the “demonstrated interest in the enforcement of civil rights laws” as hiring criteria in the future, so as to reduce the skew (a disparity determined to be perfectly legitimate). Perez rejected this suggestion and offered another valid defense for the disparity: “we believe that it is appropriate in selecting attorneys for litigating positions in the Civil Rights Division to consider whether applicants have experience with and a demonstrated interest in civil rights litigation” (Appendix A). Again, whether or not the OIG accepts this rationale, this is another example of Perez properly using the defense component of the “disparate impact” doctrine.

It's clear the NRO doesn't like the “disparate impact” doctrine that Perez has so effectively used on behalf of communities of color against voter suppression and fair housing violations. It's also clear that NRO really doesn't like Perez. However, accusing Perez of a “double standard” and commenting “what's ironic about Perez's dismissal of 'disparate impact' concerns in this context is that he has gone to great lengths to protect this same theory regarding fair-housing laws” is incoherent.

After the Schlozman ideologues left, the return to “merit system principles” in the Civil Rights Division not only yielded few conservative hires, not many conservatives applied. Ultimately, this is a reflection of a conservative problem - not a Perez one.