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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