The Most Significant Case You've Never Heard Of

How an obscure Supreme Court ruling severely damaged our entire nation

People often think of the 1960s as a tumultuous time in our nation’s history, but in many ways the real damage was done in the 1970s. The 70s was a time when a lot of the chaos of the 60s settled down, but unfortunately it didn’t happen by conditions getting back to normal so much as by surrender, assimilating the chaos into a “new normal” that was significantly worse.

Instead of rejecting the tasteless disco fad that sprung up in underground 60s dance clubs, Hollywood pushed it into the mainstream.

Instead of reining in bad financial habits, President Nixon took us off the gold standard, opening the door to unchecked deficit spending, with ruinous consequences that are just now beginning to come to a head.

And instead of shutting down the insane social theories of the 60s radicals, the Supreme Court began to legitimize them.

Bad court cases

When you think of bad Supreme Court cases, there are a few that immediately spring to mind. Dred Scott and Plessy v. Ferguson, everyone can agree were terrible cases that needed to go, and thankfully did get overturned in time. A lot of conservatives find New York Times v. Sullivan deeply harmful with the way it raised the bar on individuals’ ability to hold the media liable for defamation to a practically unclearable height. A lot of liberals (and also more conservatives than you might think, particularly in recent years with the rise of corporate wokeness!) take issue with the Citizens United decision granting corporations virtually unlimited power to push political agendas.

And then there’s the granddaddy of them all — a case so awful even its supporters often would freely admit that it had nothing even resembling a firm foundation in Constitutional law or American legal tradition — Roe v. Wade. Thankfully that one was recently taken out behind the barn and put out of our misery, after a concerted half-century-long grassroots campaign to get it fixed.

There are a few more obscure cases that have caused some real problems. Calder v. Bull, for example, took the plain wording of the Constitution, that no ex post facto (retroactive) law may be passed in the USA, and said “oh, when the Framers said no law, what they really meant was no criminal law, but civil ex post facto laws are just hunky-dory!” This has caused a lot of harm in a lot of unexpected places; someday I’ll write an article on copyright abuse that touches on this point, for example.

But one of the worst of all was a case that few people know about, that’s directly responsible for virtually everything that’s wrong with higher education today. And with the way wokeness emerged from our broken academia, it’s also indirectly responsible for a significant fraction of the sum total of today’s societal screwed-uppedness.

Griggs v. Duke Power

In 1970, the Burger court (the same renegade SCOTUS that would hear Roe v. Wade a few years later) took on a case called Griggs v. Duke Power Co. In the wake of the Civil Rights Act of 1964, a lot of businesses were a bit slow to comply with the requirement to end racial discrimination in employment. (Another article I need to write eventually: a discussion of how historical racism in America was always more of a top-down, societal elite issue than a general societal issue.) One of these employers was Duke Power, an electric company in North Carolina whose management had a history of dragging their feet on workplace-integration issues. After going several rounds with the Equal Employment Opportunity Commission, fighting them and losing at every step, eventually the EEOC sponsored a lawsuit by 13 black workers who felt they had been discriminated against in their employment opportunities. One of them was a guy named Willie Griggs, who ended up listed as first plaintiff.

One of the main points the EEOC took issue with was Duke Power’s use of industry-standard aptitude tests in employment decisions. This was explicitly permitted under section 703(h) of the Civil Rights Act:

Notwithstanding any other provision of this subchapter, it shall not be an unlawful employment practice for an employer … to give and to act upon the results of any professionally developed ability test provided that such test, its administration or action upon the results is not designed, intended or used to discriminate because of race, color, religion, sex or national origin.

Nevertheless, the crusading attorneys representing the plaintiffs pushed the idea that aptitude tests were a tool of abuse and discrimination in employment. (This is another recurring theme with Leftists: they’re never satisfied. Immediately after winning their hard-fought piece of civil-rights legislation, they turned around and started pushing to nullify parts of it that they felt didn’t go far enough!) And they lost; the judge shut them down and found that Duke Power’s use of testing was perfectly reasonable and lawful. The plaintiffs appealed, and the appeals court also found that Duke Power’s use of testing was reasonable, though it found unlawful discrimination in the individual cases of about half of the plaintiffs and ordered that it be remedied.

Justice had been served. The law said tests were fine as long as they weren’t being used maliciously. The court reaffirmed this, found that Duke Power had done some bad things to some of the plaintiffs, and told them to fix it. Everything’s good, right?

Well, not for the crusading lawyers powering this case. Much like the activist lawyer who caused so much harm to Sage, they weren’t actually after justice, or truth, or the well-being of their clients. No, they were after social justice and wanted to Change The System. So they appealed to the Supreme Court, which unfortunately took the case, and ended up handing down a ruling that, because aptitude tests had a tendency to give lower results for minorities, their use in employment constituted unlawful discrimination.

Bad intended consequences

So what, you ask. They managed to do away with a discriminatory business practice, and now employers don’t give intelligence tests anymore.

Well, it’s a bit more complicated than that. With this ruling, the Court blatantly legislated from the bench. The law said that tests were fair to use as long as they are “not designed, intended or used to discriminate.” The Court said that because the outcomes are uneven, the tests are inherently discriminatory and therefore no good. For the first time, proto-SJW lawyers had managed to push the notion of disparate impact into legal recognition in America.

Today, disparate impact is known for its association with Critical Race Theory, pushed by grifters like Ibram X. Kendi who openly proclaims that any disparity in outcomes between different races must necessarily be the result of discrimination and raaaacism, entirely dismissing the role of individual agency in the causal chain. In a case put forward in the name of equal employment opportunity, the plaintiff’s lawyers managed to instead push an agenda of equal employment results into case law.

If that was all that happened, it would have been bad enough. But unfortunately it ran up against a problem that has bedeviled Leftists from the beginning: you can change laws, but you can’t change reality.

Even worse unintended consequences

The thing is, pulling testing out from under the employers did nothing about the underlying issue that the tests were there to solve; they still needed a way to tell who the smart candidates are. Upon finding themselves unable to legally measure this directly, they turned to an indirect measurement instead. Because institutes of higher education were still permitted to test people, employers began using degrees as a proxy for the missing testing. Almost overnight, possession of a college degree became the key to getting a good job.

Now, what does basic economics predict would happen next?

If you said, “demand for degrees immediately becomes virtually unlimited, and supply does not increase to match,” congratulations, you’re smarter than the activist Justices of the Burger Court! Everyone with any ambition of finding a decent job now needed a degree, sending millions of Americans flooding into a system that was never designed to hold them.

Higher education was originally meant to be, well, higher education, not standard education. It was designed for elites, for educating leaders, researchers, and specialized high-prestige high-knowledge professions like doctors and lawyers. But the Griggs decision turned it into a standard next step that just about everyone felt they needed to take now in order to secure their own futures.

So what happens when you have unlimited demand and sharply constrained supply?

• Prices go up

• High prices plus high demand and low supply means calls for Someone to Do Something

• Government responds with loans and subsidies

• Loans and subsidies turn price-sensitive customers into price-insensitive ones, sending both demand and price spiraling even higher

• High numbers of ordinary students poured into a higher education system meant to educate low numbers of elite students find themselves a poor fit. Grades suffer, putting the all-important degree in jeopardy.

• Existing schools are pressured to lower standards, and new low-quality schools begin to emerge that compete on price by offering less rigorous educations.

• As degrees become more numerous and less indicative of a high-quality applicant, their value as a credential to get a good job erodes. (Eduflation.)

• As prices keep going up for a product whose value keeps going down, a lot of students who quite rightfully feel they’ve been ripped off call for Someone to Do Something.

• Joe Biden responds with his illegal student debt burden-transfer (“forgiveness”) orders.

Someone do something!

Someone truly does need to do something. But the something in question is not this, and the someone in question is not the Executive Branch (which has no authority to nullify student loans) or the Legislative Branch (which only made things worse by handing out the loans in the first place).

What needs to be done is for the Supreme Court to again roll back a terrible ruling by their renegade 70s forebears. Revisit the Griggs ruling, wipe out the absurd and un-American “disparate impact” standard, and cut down the unlimited demand problem that’s destroyed American higher education.