The Supreme Court and the National Collegiate Athletic Association, like lots of institutions, have an awkward problem.

It’s what lawyers call ”disparate impact”: the statistical underrepresentation of black and Hispanic people among those found to be the best qualified for coveted positions ranging from elite law clerks to student-athletes.

Such disparities have spawned many a civil rights lawsuit, and in recent months have inspired a controversy over judicial hiring practices, complete with protesters led by the NAACP shouting ”discrimination” outside the Court.

Two recent developments should give the justices food for thought about how they and the rest of the federal judiciary might fare if–as Rep. Jesse Jackson Jr., D-Ill., recently proposed–they were subject to the same civil rights rules that they, and Congress, enforce against others.

First, on March 8, U.S. District Judge Ronald L. Buckwalter of Philadelphia voided the NCAA’s minimum test-score requirement for student-athletes on the ground that it subjected African-Americans to racial discrimination, in violation of federal civil rights law.

His reasons were that (1) a far smaller proportion of blacks (79.6 percent in 1997) than of whites (95.8 percent in 1997) have scored well enough on the tests to qualify under the NCAA rule’s cutoff score, and (2) the NCAA had not carried the (virtually insuperable) burden of proving to the judge’s satisfaction that the rule’s ”particular cutoff score” was sufficiently effective at improving graduation rates–its main purpose–to justify this disparate racial impact.

The NCAA is expected to appeal.

Second, on March 10, Justices David H. Souter and Clarence Thomas, appearing at an otherwise routine House Appropriations subcommittee hearing, were grilled about why they and their seven colleagues had hired so few black and Hispanic law clerks over the years. The grillers were two House Democrats sympathetic to Rep. Jackson’s proposal.

The numbers are stark: ”Fewer than 2 percent of the clerks hired by the current justices during their tenure on the Court–seven out of 428–have been black,” as reporter Tony Mauro wrote in Legal Times on March 15. Fewer still (5 clerks) have been Hispanic.

(About 7 percent of recent law school graduates are black, and 5 percent Hispanic. The population is 13 percent black and 10 percent Hispanic.)

According to numbers compiled by Mauro, the Court’s four strongest supporters of racially preferential affirmative action–Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg, and Stephen G. Breyer–have respectively employed only three (out of 61), zero (out of 35), one (out of 24), and one (out of 20) black clerks while on the Court.

At the March 10 hearing, the two justices responded somewhat sheepishly to questions about the clerkship numbers, which also show women to be underrepresented. They stressed that ”there is no one on the Court who would not like those numbers to change,” in the words of Souter, who seemed to welcome ”pressure for change in the process that feeds these people to us.”

Meanwhile, the justices explained, they must hire the candidates with the best paper qualifications–rather than ”take chances” on candidates with less impressive credentials–because clerkships require intense, highly skilled work and last only a year.

To which it might be responded that many jobs require intense, highly skilled work, and that many employers are reluctant to take chances.

”We are creatures of our feeder system”–the elite law schools and lower federal courts–Justice Souter explained.

To which the ”feeder” law schools might respond by excusing their own racially incorrect numbers–their disproportionate allocation of the highest grades and other badges of academic success to whites and Asians–as creatures of their own ”feeder systems”: the nation’s colleges.

For that matter, the NCAA and its member colleges might respond that their own disparate-impact problem is the creature of still another ”feeder system”: the nation’s high schools.

And so on, down to the nation’s kindergartens and families.

But a cogent defense of the justices’ hiring practices has been made by acting professor Eugene Volokh of the University of California (Los Angeles) Law School, a former Supreme Court clerk himself, in the Oct. 12 Wall Street Journal.

Even disparate-impact law recognizes, Volokh noted, that ”the racial makeup of those hired must be compared not against the general population, but against the qualified labor pool.” In hiring Supreme Court clerks, the qualified pool is not all recent law graduates, but those who rank at the very top of their classes at the most elite schools–although the justices might have trouble proving this to the satisfaction of jurists as exacting as Judge Buckwalter.

Little is known about this pool, because law schools do not release data on the racial makeup of, say, the top 2 percent of their graduates. But Volokh has an estimate, extrapolated from data documenting dramatic racial disparities in the undergraduate grades and test scores of those seeking admission to law school: ”One can infer that among this pool of applicants who are most qualified to clerk for the Supreme Court, there’d probably be no more than about 0.6 percent blacks and 1.6 percent Hispanics, and perhaps even fewer. So, on close examination, the supposed evidence of the Court’s discrimination vanishes.”

If Volokh is right, then the only way the justices could satisfy critics who want their corps of clerks to ”look like America” would be to abandon strict merit selection or to institute hiring preferences.

Why do so few black and Hispanic students end up graduating near the top of their classes, not only in law school but also in fields such as the hard sciences?

The reason is not any lack of opportunity at the elite universities. Far from it: These institutions have made aggressive use of racial preferences in admissions and other forms of affirmative action to help black and Hispanic students.

The reason is the stark fact that so few black and Hispanic students finish high school with the academic grounding necessary to excel at the highest reaches of academic competition, and that so many cannot even adequately perform basic reading, writing, and mathematical tasks.

That is also the reason for the racial disparities in test scores that plague the NCAA eligibility rule.

Judge Buckwalter’s opinion mounts an articulate argument that his ruling was dictated by Supreme Court and appellate precedents. If he’s right–which I doubt–then the precedents should be reconsidered in the expected appeals.

The NCAA rule was not perfect; no rule is. But it had a lot going for it. It was a reasoned response to undisputed evidence that universities were admitting and exploiting many poorly schooled student-athletes (especially blacks)–treating them not as scholars but as as revenue centers–without educating or graduating them.

Any effort to fight this practice by requiring a minimum of academic skills for high school athletes seeking college scholarships would inevitably have both a harsh personal impact on kids who cannot qualify and a disparate statistical impact on blacks; the higher the academic standards, the greater these impacts would be.

The NCAA sought in good faith to minimize the disparate impact; the minimum SAT score required by its rule was 820, far below the average score of 1017. Student-athletes scoring below 820 could still enter college, take remedial courses, and hope to join teams later; and blacks are still statistically overrepresented (for reasons of athletic merit) on most college football, basketball, and track teams.

Beyond all that, the evidence suggests that the NCAA rule improved both the graduation rates of college athletes and the incentives of high school athletes to take academics seriously.

This is racial discrimination? If so, then maybe the justices’ hiring procedures are also discrimination.

And maybe Jackson is right: Maybe it wouldn’t be such a bad idea to subject the justices and other federal judges to the same civil rights laws they enforce against others. It might make them think harder about the real-world consequences of their rulings.

Meanwhile, after almost 30 years of affirmative action at the university level, and after more than 30 years of neglect at the elementary and secondary school levels, isn’t it time we tried something else?

Something that might help spur more students to focus on academics both before they reach college and after they get there? Something sort of like that NCAA eligibility rule?