The "anti-discrimination" laws behind the education boom

How "anti-discrimination" laws actually make life harder for blacks

Like pebbles tossed into ponds, important Supreme Court rulings radiate ripples of consequences. Consider a 1971 Supreme Court decision that supposedly applied but actually altered the 1964 Civil Rights Act. During debate on the act, prescient critics worried that it might be construed to forbid giving prospective employees tests that might produce what was later called, in the 1971 case, a "disparate impact" on certain preferred minorities. To assuage these critics, the final act stipulated that employers could use "professionally developed ability tests" that were not "designed, intended or used to discriminate."

Furthermore, two Senate sponsors of the act insisted that it did not require "that employers abandon bona fide qualification tests where, because of differences in background and educations, members of some groups are able to perform better on these tests than members of other groups." What subsequently happened is recounted in "Griggs v. Duke Power: Implications for College Credentialing," a paper written by Bryan O'Keefe, a law student, and Richard Vedder, a professor of economics at Ohio University.

In 1964, there were more than 2,000 personnel tests available to employers. But already an Illinois state official had ruled that a standard ability test, used by Motorola, was illegal because it was unfair to "disadvantaged groups." Before 1964, Duke Power had discriminated against blacks in hiring and promotion. After the 1964 act, the company changed its policies, establishing a high school equivalence requirement for all workers, and allowing them to meet that requirement by achieving minimum scores on two widely used aptitude tests, including one that is used today by almost every NFL team to measure players' learning potentials.

Plaintiffs in the Griggs case argued that the high school and testing requirements discriminated against blacks. A unanimous Supreme Court, disregarding the relevant legislative history, held that Congress intended the 1964 act to proscribe not only overt discrimination but also "practices that are fair in form, but discriminatory in operation." The court added: "The touchstone is business necessity. If an employment practice which operates to exclude Negroes cannot be shown to be related to job performance, the practice is prohibited."

Thus a heavy burden of proof was placed on employers, including that of proving that any test that produced a "disparate impact" detrimental to certain minorities was a "business necessity" for various particular jobs. In 1972, Congress codified the Griggs misinterpretation of what Congress had done in 1964. And after a 1989 Supreme Court ruling partially undid Griggs, Congress in 1991 repudiated that 1989 ruling and essentially reimposed the burden of proof on employers.

Small wonder, then, that many employers, fearing endless litigation about multiple uncertainties, threw up their hands and, to avoid legal liability, threw out intelligence and aptitude tests for potential employees. Instead, they began requiring college degrees as indices of applicants' satisfactory intelligence and diligence. This is, of course, just one reason why college attendance increased from 5.8 million in 1970 to 17.5 million in 2005. But it probably had a, well, disparate impact by making employment more difficult for minorities. O'Keefe and Vedder write:

"Qualified minorities who performed well on an intelligence or aptitude test and would have been offered a job directly 30 or 40 years ago are now compelled to attend a college or university for four years and incur significant costs. For some young people from poorer families, those costs are out of reach."

Indeed, by turning college degrees into indispensable credentials for many of society's better jobs, this series of events increased demand for degrees and, O'Keefe and Vedder say, contributed to "an environment of aggressive tuition increases." Furthermore they reasonably wonder whether this supposed civil rights victory, which erected barriers between high school graduates and high-paying jobs, has exacerbated the widening income disparities between high school and college graduates.

Griggs and its consequences are timely reminders of the Law of Unintended Consequences, which is increasingly pertinent as America's regulatory state becomes increasingly determined to fine-tune our complex society. That law holds that the consequences of government actions often are different than, and even contrary to, the intended consequences.

Soon the Obama administration will arrive, bristling like a very progressive porcupine with sharp plans -- plans for restoring economic health by "demand management," for altering the distribution of income by using tax changes and supporting more muscular labor unions, for cooling the planet by such measures as burning more food as fuel and for many additional improvements. At least, those will be the administration's intended consequences.

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Costly innumeracy in Britain

Children who fail to master basic maths cost society up to 44,000 pounds by their late thirties, a report concludes. Research by KPMG suggests that innumeracy costs Britain 2.4 billion every year as people fall behind at school and in the workplace. Children who fail to master basic maths are more likely to truant and be excluded from school, and run a higher risk of being unemployed and being drawn into crime, it says.

The report was commissioned by Every Child a Chance Trust, an educational charity, which says that 30,000 children leave primary school each year unable to do simple calculations. The report says: "Competent numeracy would appear not only important in relation to employability and the economy, but also as a protective factor in maintaining social cohesion." An earlier survey that tested maths skills concluded that 15 million adults have numeracy skills at or below those of an 11-year-old.

The KPMG research said that there was a significant link between poor numeracy and antisocial behaviour, even when other factors were considered. The raw wage premium from having adequate numeracy is greater now than in the early 1990s, according to researchers from the London School of Economics, the report said.

Teenagers who leave school without basic maths cost the taxpayer 1.9 billion a year because of unemployment, the report's authors calculated. The report said that those costs were incurred by people with numeracy difficulties, but who were competent at reading and writing. It added: "For all those with numeracy difficulties, the total costs to the public purse arising from the failure to master basic numeracy skills in primary school are estimated at between 4,000 and 44,000 pounds per individual to the age of 37, and between 4,000 and 67,000 over a lifetime."

The charity is starting a campaign to encourage businesses to help local children with maths problems. Children will receive maths toolkits that include dice, counters, bead strings, traditional games such as dominoes and snakes and ladders, maths computer games, and CDs of number songs. John Griffith-Jones, chairman of KPMG and of the trust, said: "Every pound put forward now will save the nation at least 12 later on in reduced crime and unemployment and other savings."

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Australia: Exodus from Queensland government schools continues

The public school system has lost more than 55,000 students to private schools since Labor won Queensland in 1998 and rebranded it the Smart State. Figures obtained by The Courier-Mail show a 3.4 per cent drop in public school students compared with the private sector, from 1998 to 2007. And of the 206,000 extra private school students in Australia over that time, about one in three has been from Queensland. The net result means just 68.6 per cent of Queensland students attend state schools.

Over the decade, annual education funding has dropped 3 per cent as a proportion of total government funding, to 22 per cent. A spokesman for Treasurer Andrew Fraser said the decrease was "because of an elevated focus on health funding" and total spending should double, from 1998 levels, to $8.17 billion this financial year.

Deputy Opposition Leader Mark McArdle claimed the march out of state schools showed parents did not trust the Government to deliver quality education. Falling literacy, numeracy and behavioural standards in classrooms were the main reasons parents were aggrieved, he said.

Even as the economy slows dramatically and widespread job losses loom, more Queensland parents are choosing private, paying upwards of $15,000 a year. Brisbane parents Ben and Lisa Wavell-Smith said they had chosen St Elizabeth's Primary at Tarragindi for their daughter Malena because the Catholic school "brand" delivered a better, more rounded education than state schools. "You get the feeling also teachers seem to be more involved in their school," Mr Wavell-Smith said.

A week before Christmas, Premier Anna Bligh set terms of reference for the Masters Review into Queensland's underperforming primary school system, leaving the door open for Professor Geoff Masters to investigate any "systemic cultural issues (within Education Queensland) that are inhibiting performance", including bullying of teachers by EQ staff.

Experts say recruitment and retention of quality teachers is pivotal to a student's success. Former Queensland Studies Authority chairman Professor Bob Lingard said state school teachers were regularly blocked from promotion by self-interested EQ bureaucrats. "Often we get those promoted because they go along with what's happening with those above them," the Professor said. "If you want schools to do better, you have to get rid of some of those broader inequities as well."

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