Many articles in the Washington Post treat the higher black incarceration rate as proof of racism against black people, without even discussing why. There include articles not just in its op-ed section, but also in the middle of the “A” section, the primary news section of the paper. The Post generally treats racial disparities as proof of racism, even though the Supreme Court has said many times that a disparity may prove absolutely nothing. The Post also regularly praises and touts the work of Ibram X. Kendi, who claims that disparity is conclusive proof of racism. “When I see racial disparities, I see racism,” says Dr. Kendi, in language trumpeted by liberal journalists.
But this assumption has been rejected by the courts, over and over again. For example, in a 6-to-3 ruling, the Supreme Court said that it is “completely unrealistic” to think minorities should be represented in a field “in lockstep proportion to their representation in the local population.” (See Richmond v. J.A. Croson Co. (1989)).
The Supreme Court has also rejected the assumption of many Washington Post writers that higher black arrest and incarceration rates reflect racism. In an 8-to-1 ruling, the Supreme Court emphasized that there is no legal “presumption that people of all races commit all types of crimes” at the same rate, since such a presumption is “contradicted by” real world data showing big differences in crime rates. Thus, racial disparities in arrest or incarceration rates don’t violate the Constitution’s ban on racial discrimination (See United States v. Armstrong (1996)).
The contemporary Washington Post never quotes these binding Supreme Court rulings.
The courts regularly reject the idea that disparities automatically constitute discrimination. A federal appeals court ruled in 2001 that a racial “disparity” in discipline rates does not “constitute discrimination.” (See Belk v. Charlotte-Mecklenburg Board of Education). That ruling was issued by Judge William Traxler, a moderate Democrat appointed to the appeals court by Bill Clinton. His ruling found that a school system’s record of suspending black students at a much higher rate than whites was not evidence of discrimination or a vestige of segregation.
Researchers regularly find that racial disparities have non-discriminatory causes. For example, the higher black school suspension rate is consistent with the fact that in surveys, black students admit misbehaving at higher rates than whites or Asians do. As education expert Michael Petrilli notes, black students admit in surveys to misbehaving at higher rates. In a 2018 commentary for the Thomas B. Fordham Institute, he noted that black students admitted to “going to class late” at about twice the rate for whites, and nearly three times the rate for Asians, in 2009-10. And blacks admitted to getting into fights at over twice the rate for whites. Other surveys also show black students self-reporting higher rates of fighting or other misbehavior. (See, e.g., National Center for Education Statistics, “Indicators of School Crime and Safety: 2016,” on page 87, Table 13.2)).
Because racial disparities can be non-discriminatory in origin, abolishing them can actually create, rather than solve, problems. In 1997, a federal appeals court struck down a rule that forbade a “a school district to refer a higher percentage of minority students than of white students for discipline,” calling it an unconstitutional racial quota that would require harsher treatment of white students than similarly-situated minority students. (See People Who Care v. Rockford Board of Education).
In some cases, eliminating racial disparities would harm minority students. Asians have the lowest arrest, incarceration, and school suspension rates of all races, lower than whites. For example, Asians are suspended at about one-fourth of the white rate, in California, according to the Brookings Institution. Requiring that all racial groups be suspended at the same rate as whites, would thus require innocent Asians to be suspended, to get their suspension rate up to the white rate.
So focusing on eliminating “disparities” — as The Post wants its reporters to do — could be very harmful to minorities, such as Asians. Indeed, it could increase racial injustice.