It was only yesterday that conservatives were crowing that the era of racial quotas was over. To the contrary, nothing better reveals the overthrow of equality in law than the use of "disparate impact" arguments by libertarians and conservatives to advance their policy goals.

Consider, for example, the case for privatizing Social Security and the case for school vouchers.

The Cato Institute's Project on Social Security Privatization, headed by Michael Tanner, an excellent policy analyst, has proven beyond any doubt that the replacement of an intergenerational income transfer payment with a funded private retirement is of great benefit to everyone.

To the extent that evidence matters in public policy, Cato has made the case. But Mike Tanner is not convinced that evidence is what matters. In a February 5 Cato report, "Disparate Impact: Social Security and African-Americans," Mr. Tanner argues that privatization is "a civil rights issue," because blacks are disadvantaged by lower life expectancy and collect fewer Social Security checks.

There is no doubt that Mr. Tanner is correct about longevity. White men, on average, outlive black men, and white women outlive black women. But the life expectancy statistics that Mr. Tanner uses also show that women live longer than men. Thus Social Security also discriminates on the basis of gender as well as race.

But there would be no cachet in arguing that Social Security has disparate impact on, or discriminates against, men. Men are not a preferred minority, preferred gender, or victim group. Blacks, however, are, and the Cato Institute believes it strengthens the privatization case to argue that Social Security discriminates against blacks.

Mr. Tanner argues that blacks are primarily dependent on wages and have little income from capital gains, dividends or interest and receive little by way of inheritance. Therefore, Social Security, which is paid from a payroll tax, takes "a higher percentage of total income from blacks than from whites." As blacks die sooner, "Social Security transfers wealth from poorer blacks to wealthier whites."

Mr. Tanner sees this argument as adding weight to the case for privatizing Social Security. However, people who believe in group rights and who view society in terms of subordinate and dominant groups might draw different conclusions from Mr. Tanner's analysis.

Mr. Tanner's argument can be used to support the case that the appropriate remedy is earlier retirement ages and larger benefits for blacks than for whites, and inclusion of all income sources in the Social Security tax base.

Those who believe in individual rights should not base their policies on "disparate impact" arguments. Once Social Security is seen as part of the hegemonic order that oppresses a subordinate group, the solution to Social Security's disparate impact on blacks will be the extension of racial privileges to Social Security. This is certainly not what Mr. Tanner wants.

Public education also has disparate impact on blacks, with many black students trapped in failing inner city schools. The conservatives' solution is school vouchers. Vouchers have a Milton Friedman pedigree, which speaks highly of them. As there are not enough private schools to accommodate a mass exodus from public schools, advocates rely on vouchers to increase public school quality through competition for students.

But all classroom failure is not due to teachers. In many cases teaching fails because troublesome students keep classes in constant disruption. Learning doesn't take place when discipline is absent at school and at home. Public school discipline has become a basis for lawsuits. At home, discipline is a basis for intervention by case-hungry bureaucrats in Social Services and Child Protective Services. 

Vouchers are a way of seeding orderly private school classrooms with disorderly students, thus breaking down the education process. If disruptive voucher students of a preferred race or gender were expelled from a private school in order to protect the learning environment, the school, under the current meaning of civil rights, would be subject to discrimination charges.

Private schools work because there is a different culture at work. Parents provide discipline at home, and parents support discipline at school instead of seeing discipline as a civil rights violation and an excuse for a lawsuit. Self-selection is also at work. Students in private schools are motivated to learn.

It only takes one or two troublemakers to destroy the classroom learning environment. Vouchers might only result in exporting public school problems to private schools, resulting in the spread of home schooling.

Schooling will improve when public policy ceases to destroy families and lessen control over children. In the meantime, libertarians and conservatives should realize that group-based equality of result arguments do not provide a promising basis for their view of society.

COPYRIGHT 2001 CREATORS SYNDICATE, INC.

March 14, 2001