Disparate Impact and Sharks

By Josh Gelernter

Saturday, April 18, 2015

‘Disparate impact” has been in the news lately. Per 1964’s Civil Rights Act, government agencies are prohibited from discriminating among citizens by their races, sexes, or religions. According to the theory of disparate impact, if the actions of a government agency disproportionately affect members of one race, sex, or religion — even if no disproportion was intended — the action is illegal, and the offending agency is liable for violation of the Civil Rights Act. The Supreme Court heard arguments on a disparate-impact housing case in January; in March, Eric Holder’s Justice Department used disparate-impact theory to charge Ferguson’s police department with unlawful racial bias.

Also in the news lately: shark attacks. This week, The Week reported on an increase in shark attacks after a shark killed a 13-year-old surfing in the Indian Ocean. According to the annual summary of the International Shark Attack File, “the number of worldwide unprovoked shark attacks has grown at a steady pace since 1900, with each decade having more attacks than the previous.” This correlates with increases in human population, but it is also due, says The Week, to the fact that “shark populations are also growing, as sharks that were once overfished have started to recover.”

The last five years have seen, on average, 78.2 unprovoked shark attacks per year; 7.8 per year, about 10 percent, have been fatal. A study along these lines by Australia’s Bond University showed, according to the Mirror, a “threefold increase in unprovoked shark attacks over the last 30 years.” It also showed that sharks are “9 times more likely to kill men than women” (my emphasis). The study’s author, Professor Daryl McPhee, suggests this may be because “men spend more time in the water, and are more risk-prone” than women. But nonetheless: 9 to 1 represents a highly disparate impact of increased shark populations.

So why are shark populations increasing? Well, according to the State Department, “the United States places a high priority on achieving effective conservation and management of sharks,” through a number of programs, which are outlined on state.gov’s “Shark Conservation” page. According to the National Oceanic and Atmospheric Administration, “for nearly two decades the United States has been a leader” in shark conservation, something that has been “good . . . for sharks.”

These programs, which the United States has “spearheaded,” according to the State Department, “through the Department of State and the National Marine Fisheries Service,” clearly, if unintentionally, have a much heavier impact on men than on women. Unintended consequences be damned; if the Supreme Court affirms the legal position that disparate impacts of federal programs are, ipso facto, unlawful, then the Department of Justice must charge the Department of State with institutional sexism, in violation of the Civil Rights Act of 1964. Write your congressman.