In a concurring opinion out of the 5th Circuit Court of Appeals, Judge James C. Ho, appointed and confirmed under President Donald Trump in 2017, went nuclear on Democrats and other proponents of the critical race theory.
The federal judge likened the critical race theory to the so-called “disparate impact theory” in a scathing opinion that, according to Fox News, argued that both legal philosophies can give rise to racial bias.
The judges’ ruling
According to Law360, the case out of Texas, Rollerson v. Brazos River, involves claims from property owner Manning Rollerson, who is Black. The plaintiff has accused a private port development company funded in part by the U.S. Army Corps of Engineers of using racially discriminatory practices to purchase property in the predominantly minority neighborhood of East End in Freeport, Texas.
Alleging deception, intimidation, and manipulation in the effort to purchase the properties in the neighborhood adjacent to the expanding port — as well as the disparate impact on the minority communities there — Rollerson made claims under Title VI of the 1964 Civil Rights Act, which prohibits discrimination in federally funded programs.
He also alleged violations of the Administrative Procedures Act (APA) by the Corps in failing to consider his initial complaints.
For its part, the three-judge panel of the appeals court upheld a district court’s decision to dismiss Rollerson’s Title VI claim, but overruled the dismissal of the APA claim and remanded it back to the lower court for further consideration.
“There’s a big difference”
Judge Ho concurred with the panel’s ruling, but used the opportunity to question the disparate impact theory, writing:
Congress enacted Title VI of the Civil Rights Act of 1964 to prohibit intentional racial discrimination — not to restrict neutral policies untainted by racial intent that happen to lead to racially disproportionate outcomes.
“There’s a big difference between prohibiting racial discrimination and endorsing disparate impact theory,” he added, according to Fox. “It’s the difference between securing equality of opportunity regardless of race and guaranteeing equality of outcome based on race. It’s the difference between color blindness and critical race theory.”
The judge said “[p]rohibiting racial discrimination means we must be blind to race.”
“Disparate impact theory requires the opposite: It forces us 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,” Ho wrote.
“It should be done by Congress”
Still, the judge said such a theory can become the prevailing philosophy — that is, if the voters want it. In any case, he argued, it shouldn’t be decided by the courts.
“To be sure, then, citizens can debate in good faith whether disparate impact theory is the right way to eliminate the scourge of racial bigotry from our Nation. To some, it is the cure. But to others, it is worse than the disease,” Ho concluded. “My point is simply this: If disparate impact theory is going to be incorporated into federal law, it should be done by Congress — not agency regulators.”