Vaccine Mandates Will Have a Disparate Impact on Minorities | Opinion

One of the foundational principles of modern civil rights lawsuits is the concept of disparate impact. De jure discrimination and desegregation disappeared in the United States more than a half century ago. In the wake of that triumph, activists moved from opposing Jim Crow laws that specifically targeted minorities—and in particular, African Americans—to targeting laws and practices which, according to the activists, produce negative outcomes for minorities, even if on the surface they are not discriminatory. This concept is the driving force behind claims that voter ID laws are discriminatory, for example.

Many state and local leaders are now intent on enacting far-reaching rules about vaccination that will determine access to schools, public events, sports and arts performances, places of business and public accommodations. Yet activists are silent about the way vaccine mandates will affect groups that were targeted by the racist laws of the past.

While approximately half of all white Americans are vaccinated, only 38 percent of African Americans have received at least one shot, the lowest rate of any ethnic or racial group. This fact is missing from discussion of proposals to ban the unvaccinated from the public square.

To those who fear further spread of the coronavirus, and especially the new Delta variant, calls to exclude the unvaccinated are just common sense. As of the start of August, more than 60 percent of Americans have received at least one dose of a COVID vaccine, and 51 percent are considered fully vaccinated.

As we have learned in recent months, being vaccinated does not ensure that you can't catch or spread the virus. But it does reduce the chances that the patient will suffer severe symptoms, be hospitalized or die. Even being partially vaccinated reduces the chances of a bad outcome.

That makes for a powerful argument in favor of vaccination. Those without a good medical reason to avoid vaccines should avail themselves of the opportunity to protect their health against a dangerous disease. But the question of whether we should force those who choose not to be vaccinated out of public life is a complicated legal and moral issue.

The fact that the vaccines are not as effective as most Americans hoped they would be plays into this conundrum. If the vaccines totally prevented people from spreading or catching the disease, then one might determine that the unvaccinated are on their own with respect to the virus, because their peril would not endanger those who were vaccinated. If unvaccinated persons help spread the virus more easily than the vaccinated, then draconian rules may seem reasonable to those who had hoped the shots would ensure a return to normal life.

Unfortunately, the Delta variant and the appearance of breakthrough cases have complicated this debate. What's more, vaccines have become political. Differences in practice or opinion over their use are yet another front in the country's ongoing culture war.

Some on the Right believe that Democrats exploited the pandemic to grab more unaccountable power for the government and regard ideas like mask mandates as untethered from science. Many have adopted the same contrarian approach to vaccines, even though it was former president Donald Trump, not Joe Biden, who made mass vaccination possible. In response, some on the Left have embraced masks as if they were the left-of-center equivalent of MAGA hats, and regard any resistance to vaccines just another variant of Trumpist "insurrection."

That is why arguments about vaccine passports or mandates seem a replay of fights about lockdowns and masks, which right-wingers were more likely to regard as a form of governmental oppression, while liberals acted as if not following COVID rules was unpatriotic.

Vaccine mandates are far from theoretical. Many private businesses, including sports and arts venues, are already requiring them for entry. Some cities are requiring proof of vaccination for civil service workers and entry into public events. New York is promulgating a "key to NYC Pass" as a requirement for work or dining out. Many colleges are either requiring vaccinations or subjecting the unvaccinated to oppressive rules that marginalize their presence on campus.

Coronavirus vaccine required
A sign stating proof of a Covid-19 vaccination is required is displayed outside of Langer's Deli in Los Angeles, California on August 7, 2021. - The restaurant announced that proof of vaccination would be required to dine indoors at the restaurant as Covid-19 variant causes surge in the Los Angeles area. Patrick T. FALLON / AFP/Getty Images

Mandate advocates scoff at the idea that unvaccinated are subject to discrimination. They say that those who endanger public health are not a protected class and that the new rules, however far reaching, are not only justified by the public health emergency, but are the only way to prevent more lockdowns.

Missing from this discussion is any consideration of the mandates' disproportionate impact on minorities.

Most of the mainstream media treat resistance to vaccines as synonymous with Trumpism. And indeed, statistics show that Republicans are more skeptical about vaccines than Democrats. But the divide between parties is not as great as the one between races.

Most on the Left attribute the difference to lack of access to vaccines. But that excuse does not withstand scrutiny. Vaccines are widely available virtually everywhere in the United States, and that includes urban centers where racial minorities predominate.

At fault instead is skepticism about governmental intentions, dating back to the Jim Crow era in which blacks were regarded as guinea pigs for scientists, such as in the infamous Tuskegee syphilis experiment. African Americans don't trust the government or its institutions as readily as white Americans or even Hispanics do. And that isn't because they're watching Tucker Carlson's shows on Fox News.

If you were to transpose the racial differences on vaccination to any other issue, liberals would regard these disparate outcomes as proof of a discriminatory impact. They would be quick to condemn as racist any advocate of rules that would push a large number of minorities out of public life and exclude them from restaurants, public performances, jobs and schools.

But instead, those who echo President Joe Biden's baseless and absurd claims that voter ID laws are "Jim Crow on steroids" have no qualms about rules that would actively discriminate against far more blacks than whites.

Why are white liberals suddenly indifferent to disparate impact?

As we learned in the last year, a great many Americans care more about their perceived safety than they do about their constitutional rights. It is just as obvious that the educated classes—many of whom worked from home without loss of income while the working class and poor either had to endanger themselves in "essential" service positions or lost their jobs—care even less about the rights of others, even African Americans and the poor, if they think discrimination will make their own lives easier or safer.

Leaving aside the legal and moral case for encouraging vaccination, the blind support for vaccine passports from upper- and middle-class white liberals not only exposes the hypocrisy of their stance on voter integrity laws. It also illustrates their utter indifference to the lives and rights of unvaccinated minorities that they otherwise claim to care so much about.

Jonathan S. Tobin is editor in chief of JNS.org, a senior contributor to The Federalist and a columnist for the New York Post. Follow him on Twitter at: @jonathans_tobin.

The views expressed in this article are the writer's own.