Thomas Sowell

You may have seen hundreds of black football players score touchdowns but when did you last see a black player kick the point after? Do you believe that white clubowners are willing to hire black running backs and wide receivers, and to pay them millions of dollars each, but that those very same clubowners cannot abide the thought of a black man kicking a football through the uprights?

These are just some of the absurd conclusions you would have to reach if you took "disparate impact" statistics seriously. But disparate impact theory is like the emperor who has no clothes. Everybody knows he has no clothes. But they have to pretend that he does. Otherwise, the whole system is in jeopardy.

Take away disparate impact theory and you would have widespread unemployment in government agencies that enforce anti-discrimination laws. Trial lawyers might have so much time on their hands that they would have to sue more doctors, in order to make ends meet.

Back during the Reagan administration, when there was some talk about a new presidential executive order, rescinding the executive orders of Presidents Lyndon Johnson and Richard Nixon, on which affirmative action is based, big business made their opposition known and the idea was quietly dropped.

This was not the Reagan administration's finest hour. Nor was it the Supreme Court's finest hour when the justices made their first big ruling on affirmative action, 25 years ago, and ended up with a cacophony of opinions, as they tried to square the circle and split the baby, so that quotas could continue -- provided that you didn't call them quotas.

This year we will find out whether the justices have learned anything in a quarter of a century of national discord based on their indecision.

Thomas Sowell

Thomas Sowell is a senior fellow at the Hoover Institute and author of The Housing Boom and Bust.

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