Lady Justice is blind, so that everyone before her is equal, regardless of wealth, power, or race.

That doesn’t sit well with proponents of critical race theory, who think that the courts and the other branches of government ought to use their power to put what Justice Antonin Scalia once called a “racial thumb” on the scales of justice.

In an opinion on July 29, Judge James Ho of the U.S. Court of Appeals for the 5th Circuit explained that the courts must be race-neutral. His opinion explicitly called out critical race theory and said that unless Congress changes our civil rights laws, the courts cannot embrace it.

The case involved a plan to expand part of Port Freeport in Freeport, Texas. The planned expansion requires the port to buy land, with funds from the Army Corps of Engineers, in a neighborhood called East End, which is predominantly Hispanic.

In challenging the plan, the plaintiff argued, in part, that the Port Freeport expansion violated Title VI of the Civil Rights Act, which prohibits discrimination on the basis of race in any program receiving federal funds.

The problem for the plaintiff was that there was no evidence that Port Freeport had any intent to discriminate. East End is next to the port and has to be acquired if the port is to expand. It’s simple geography.

To get around that problem, the plaintiff employed a legal theory called “disparate impact.” Under that theory, a plaintiff can try to prove that a decision is racially motivated if it has a bigger effect on one race than another and can’t be explained on nonracial grounds.

If that sounds familiar, it’s because you’ve probably seen a similar claim made by race essentialists, like Ibram X. Kendi, who has written that “[a] racist policy is any measure that produces or sustains racial inequity between racial groups.”

Disparate impact theory, Ho noted, “forces [judges] to look at race—to check for racial imbalance and then decide what steps must be taken to advance some people at the expense of others based on their race.”

The Constitution and Title VI require judges to be race-neutral. Ho explained that only Congress has the power to change the civil rights laws to embrace disparate impact theory. But if judges embrace disparate impact claims, he said, they not only ignore the law, but they cease to be race-neutral.

Ho said that to prohibit racial discrimination the courts “must be blind to race,” but “[d]isparate impact theory requires the opposite.”

It’s the difference between Martin Luther King Jr.’s dream that his children “will not be judged by the color of their skin, but by the content of their character” and Kendi’s view that “[t]he only remedy to past discrimination is present discrimination [and] [t]he only remedy to present discrimination is future discrimination.”

Disparate impact theory, Ho explained, has the perverse effect of actually encouraging racial discrimination, which the courts are supposed to stop.

He used the Supreme Court case Ricci v. DeStefano as an example. There, the city of Los Angeles administered an exam to firefighters to determine who were most qualified for promotion. After the results came in, more white candidates scored highly on it than did black candidates.

When the city saw that, it threw out the results because it feared a disparate impact lawsuit by black candidates, but by doing that, it discriminated against white candidates.

Ho noted that for some critical race theory proponents, such as Kendi, that sort of “positive” discrimination is an acceptable remedy to historical racial bigotry. But to other people, “it is worse than the disease.”

The point, Ho said, is that it isn’t the job of judges to declare race essentialists the winners of that fraught debate by endorsing disparate impact theory. Only Congress can do that.

Ho concluded that “the road to hell is paved with good intentions,” but judges like him are bound to follow laws that “forbid the ‘sordid business’ of ‘divvying us up by race’ —no matter what our intentions.”

As President Joe Biden and state and local governments around the country embrace the sordid business of divvying us up by race, it is heartening to see a judge stand up for neutral justice. 

Hopefully, many other judges stand with him because, legal titan though he be, Ho alone can’t stop the race-obsessed mob from tearing down Lady Justice.

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