ALERT: ‘American Privacy Rights Act of 2024’ Sneaks In Quotas
In the name of preventing bias, APRA imposes quotas. And it imposes them everywhere.
When the Supreme Court struck down Harvard’s use of race in admissions, liberals denounced the decision. President Biden said he “strongly, strongly disagreed” with the decision. Conservatives predicted “massive resistance” to the ruling.
Those who expected an attack on the Supreme Court’s decision were right. Those who supported Harvard are a minority. But they have no doubt about their moral clarity or their right to make the rules. Remarkably, despite the unpopularity of identity-based allocation of scarce resources, they have decided that the best defense is a sweeping offense. Legislation now pending in Congress is poised to extend racial, gender, and religious quotas well beyond education — to housing, employment, healthcare, insurance, and credit decisions – and to make them more or less mandatory.
Proponents are making only one concession to the unpopularity of their cause. They are hiding it. In fact, they’ve hidden it so well that dozens of Republicans in Congress have already voted for it, thinking that it’s a welcome bipartisan resolution of a decades-long battle over federal privacy rights.
The bill, called the American Privacy Rights Act of 2024 (APRA), does have a lot to say about privacy. It’s the result of hard negotiation between companies who make money from personal data and their Congressional critics. But when it comes to quotas, there was no one negotiating for the proposition that Americans should be judged not by the color of their skin but by the content of their character.
Instead, the drafters seized on the fear of biased algorithms to adopt a provision essentially banning the use of an algorithm that causes harm. And harm is defined as “disparate impact” on the basis of race, color, religion, national origin, sex, or disability,” (plus, weirdly, “political party registration status”). Those modest-sounding words are a magical incantation to summon quotas, because avoiding disparate impact means ensuring that benefits are divided up by identity — racial minorities and women must be more or less proportionally represented.
So, in the name of preventing bias, APRA imposes quotas. And it imposes them everywhere. The mandate applies whenever a human being uses a computer and personal data to help make a decision. It covers practically all businesses and nonprofits. So if Harvard wants to get its old quota system back, it just needs to enter applicants’ data in a computer, rank the applicants using GPA and SAT scores, then look to see if that algorithm has a “disparate impact” on some groups. The law says that’s a harm that must be mitigated – and it provides immunity from claims of race discrimination to any mitigation aimed at “diversifying” a pool of participants, such as Harvard’s freshman class.
And there you have it. Harvard’s old admissions policy is legal again – maybe even mandatory. And, not satisfied with that result, the drafters decided to apply identity politics to decisions that affect access to practically every scarce product or service in the country — “housing, education, employment, healthcare, insurance, or credit.”
This wasn’t a mistake. I’ve written about similar language in a similar bill in the last Congress, when Democratic and Republican members of the House commerce committee approved it by an overwhelming 53-2 vote. I can only conclude that the Democrats wanted the quota mandate and the Republicans didn’t think that their business constituents would care as long as they couldn’t be sued for obeying it.
Nobody was negotiating for the roughly three-quarters of Americans who think that it’s wrong to make decisions based on race or religion or gender.
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Stewart Baker is Of Counsel to Steptoe & Johnson LLP in Washington, D.C. His career has spanned national security and law. He served as General Counsel of the National Security Agency, Assistant Secretary for Policy at the Department of Homeland Security, and drafter of a report reforming the intelligence community after the Iraq War. His legal practice focuses on cyber security, CFIUS, export controls, government procurement, and immigration and regulation of international travel. He is the author of Stealth Quotas – The Dangerous Cure for ‘AI Bias’. He was a panelist at Legal Insurrection Foundation’s online event, Discrimination By Algorithm.
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Comments
Surprise. Surprise. Surprise.
Never a good idea to go down the road to tribalism. That said wouldn’t it be a little more complicated than the algorithm? The pool of applicants is the baseline or rather the pool of reasonably qualified applicants; some guy with 2.0 GPA and a 17 on the ACT can submit an application but he ain’t close to being reasonably qualified. I suppose what I am getting at here is define ‘disparate impact’ re admissions process.
Heck define it re employment at the Postal Service. If mere disparity between the ‘race’ of the Postal employees exists what is the baseline of comparison? Can’t be US Population so is it State Population? Still seems too broad so maybe County Population? Then is it only those who applied among that County population?
If we look at the demographics of the USPS I would suggest that there is a disparity between County Population demographics and the demographics of the USPS employees. Across the South ‘Blacks’ are over represented in govt employment at all levels Municipal, County, State and Federal jobs compared to County demographics. Is this something we must now ‘fix’? How?
I guess the NFL will be exempt.
Whites probably won’t have standing to sue. Not a protected class. I could be wrong about this, but whites have a legal disability compared to everyone else, and Congress is very intentional about leaving that situation in place. It’s kryptonite to suggest making whites a protected class too and thus giving everyone equal legal protection.
The fatal flaw in all the disparate impact nonsense is that the presumption of malign intent when the % of X group compared to their demographic % is imbalanced. If we accept that premise then where ANY group is under represented in employment or Student body to name two examples then no matter how the cookie crumbled the imbalanced result is presumptive evidence of malign intent in the hiring or admissions process which must be remediated. The pesky 14th Amendment and its demand for Equal Protection isn’t dead letter. If those who argue for DEI/CRT, disparate impact and equality of outcome disagree let them say so …though that admission would undermine the need for ‘minority majority’ districts to be established and maintained.
AI is neither artificial nor intelligent. It is a man behind a curtain.
It discriminates against smart groups so ought to be unconstitutional.
If this does apply to everything, woman should expect higher life insurance and car insurance premiums.
Generally, woman live longer and drive safer than men.
Women are a protected class, men aren’t. Similar to my comment above, the rule against discrimination may work only one way.
Higher health insurance premiums too, and they should get smaller monthly social security payouts, to equalize their expected lifetime benefits.
They didn’t sneak in there by themselves. So who put them there?
Name and shame.
Great article, Mr. Baker. Thank you!
Proponents are making only one concession to the unpopularity of their cause. They are hiding it. In fact, they’ve hidden it so well that dozens of Republicans in Congress have already voted for it, thinking that it’s a welcome bipartisan resolution of a decades-long battle over federal privacy rights.
Alternate hypothesis: the Franz von Papen Republicans – the same ones who sent billions for the Forever War in Ukraine, who refused to secure the border or repeal Obamacare, who just extended the totalitarian FISA, and who rubber-stamp the Biden* junta’s spending priorities and nominees – know perfectly well what is in the bill and approve of it.
I have no doubt Speaker Johnson will lend his full support to this.
In the interest of maximizing the contradictions, this language can be used to blow anti-white, anti-male, anti-conservative, anti-Christian bigotry sky high.
Predicted targets: hiring discrimination against white men for 3+ decades. Discrimination against men on college campuses in the liberal arts where upwards of 60% of all degrees go to women. How about discrimination against men in the dangerous professions (timber, mining, oil, natural gas, commfish,etc) where death rates far exceed those of women.
I expect the Usual Suspects did the Usual Suspect routine, attempting to use legislation to shore up their collapsing DEI empire. But that very language can be flipped to blow up that very industry that has been discriminating against white men for decades. It will be more than satisfying to use their newfound power to completely destroy them.
Make popcorn. This could be a whole lot of fun. Cheers –
Just because Congress passed a law doesn’t make it constitutional. The law, like the admissions policies before, should be struck down by the courts.