But in reality, the practices described in the report were commonplace outside of Ferguson, including both those that the Justice Department rightly condemned (such as Fourth Amendment violations), and those that may have had a more innocent explanation, such as Ferguson’s higher arrest rates for blacks than for whites. The fact that arrest rates are higher for blacks than whites is not usually proof of racism, but rather reflects a higher crime rate among blacks than among whites. The federal courts have recognized that well-documented fact, but the Justice Department did not. Indeed, the Justice Department demonstrated a very poor understanding of statistics in its report.
The report strongly indicates that Ferguson’s municipal government was extortionate towards many of its citizens, and took great liberties with the Fourth Amendment. Unfortunately, these practices do not appear in any way unique in the Saint Louis region, but rather are typical in some neighboring municipalities. In the Washington Post, Radley Balko wrote about how many municipalities in Saint Louis County gouge motorists and others to raise revenue. (They also are very harsh and hostile to small businesses in their code enforcement and permitting requirements, an abuse they share with other economically-depressed cities like Detroit.). Apparently, in the St. Louis area, there are innumerable tiny municipalities. Just driving to work can take you through a dozen. The tax base can’t possibly support that many little governments, so they engage in predatory practices. This is true even in towns controlled by black politicians. One possible solution would be to merge a lot of these small municipalities but, of course, no one wants to vote themselves out of power.
The Justice Department’s report also alleges systematic racial discrimination in violation of both Title VI of the Civil Rights Act, and disparate impact regulations issued by the Justice Department under that law. Unfortunately, its statistical methodology is junk. Most of the time, it crudely compares the percentage of blacks arrested to general population percentages. As a result, the Justice Department found systematic racial discrimination based on the presence of statistical disparities that are commonplace in cities across America, even those governed by black mayors and black police chiefs, when they in fact may not be proof of racism.
For example, the Justice Department writes, “Even though only 67 percent of Ferguson’s population is black, from 2012 to 2014, 85 percent of people stopped by Ferguson police, 93 percent of people arrested, and 90 percent of people who received citations were black.” But crude comparisons to the general population are frowned on by the Supreme Court, even in disparate impact cases. See Watson v. Fort Worth Bank & Trust.
This faulty benchmark led a black labor lawyer and civil-rights official to conclude that “the Ferguson Report is a Farce” that disregards basic “math.” He wrote that “several studies over the last 20 years (including data adduced before the U.S. Commission on Civil Rights) show that black drivers commit various types of traffic offenses – including speeding, driving under suspension, DUI, and running red lights and stop signs – more often than drivers of other races.”
The Justice Department’s statistical assumptions contradict the U.S. Supreme Court’s 8-to-1 ruling in United States v. Armstrong (1996). That ruling rejected the “presumption that people of all races commit all types of crimes” at the same rate, which is “contradicted by” reality. For example, blacks commit nearly half of America’s murders, according to the FBI, even though they are only 13 percent of the population, according to the Census Bureau.
Contrary to President Obama’s suggestion that the statistical racial disparities identified in the Ferguson report were not typical or “the norm,” the Justice Department itself in a footnote on page 77 of its report that disparities are worse throughout the state of Missouri than in Ferguson. It views this as raising “considerable concerns about policing outside of Ferguson as well.” (Similarly, USA TODAY reported that “at least 1,581 other police departments across the USA arrest black people at rates even more skewed than in Ferguson, a USA TODAY analysis of arrest records shows. That includes departments in cities as large and diverse as Chicago and San Francisco and in the suburbs that encircle St. Louis, New York and Detroit.”)
But the fact that Ferguson’s racial percentages were often typical might equally be viewed as a sign that the Justice Department’s own statistical methodology is flawed. Under federal court precedent, the fact that the Ferguson’s statistical disparities weren’t greater than disparities in other cities across the country seriously undercuts the Justice Department’s conclusions of intentional discrimination. In People Who Care v. Rockford Board of Education (1997), a federal appeals court ruled that racial disparities in school suspension rates in a school district weren’t evidence of intentional discrimination, where they were no greater than disparities nationally. (It also ruled that the school district could not constitutionally be ordered to not suspend a higher percentage of black students than white students, since that would create pressure to consider race in suspensions, in light of the potentially higher black infraction rate). Moreover, as I have explained elsewhere, the Justice Department’s disparate-impact regulations are themselves of dubious legality under the logic of the Supreme Court’s 2001 decision in Alexander v. Sandoval, which blocked private “disparate impact” lawsuits under Title VI, and held that the Title VI statute does not reach disparate impact.
Moreover, it is questionable whether the Justice Department properly controlled for non-racial factors in its statistical analysis. For example, the white population in Ferguson is a lot older on average than the black population. Every criminologist will tell you crime rates go down as people age. You don’t as often see a middle age or elderly person speeding or resisting arrest. So you would not expect to see the same arrest rate for whites as blacks in Ferguson given how much older whites living there are.
All this doesn’t mean that racism wasn’t present in Ferguson’s police or city government. But it does suggest that the Justice Department’s report isn’t a reliable gauge of the extent to which it was present in Ferguson, and painted with too broad a brush, making occasional instances of racism or discrimination look like standard operating procedure in Ferguson.
Hans Bader is a senior attorney at the Competitive Enterprise Institute.