Disparate Impact

Girardeau A. Spann -Georgetown University Law School

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There has been a lot of talk about post-racialism since the 2008 election of Barack Obama as the first black President of the United States. Some have argued that the Obama election illustrates the evolution of the nation from its unfortunate racist past to a more admirable post-racial present in which the problem of invid­i­ous racial discrimination has largely been overcome. Others have argued that the Obama election illustrates only that an extra­ordi­nar­i­ly gifted, mixed-race, multiple Ivy League graduate, Harvard Law Re­view President was able to overcome the persistent discrimina­tory racial practices that continue to disadvantage the bulk of less fortu­nate racial minority group members in the country.

How­ever, both perspectives fail to engage the feature of race in the United States that I find most significant. Race is relentlessly rele­vant. Racial differences are so socially salient that racial considerations necessarily influence many of the decisions that we make. Even when racial considerations are tacit or unconscious, the influ­ence of race is still exerted through the reflex habit of deferring to white interests in the belief that such deference is racially neutral. But it is not. The possibility of actual colorblind race neutrality is simply an option that does not exist.

Nevertheless, United States culture re­mains committed to an abstract principle of racial equality, which would be offended by a frank recognition of the role that race in­evitably plays in the allocation of societal benefits and bur­dens. Accordingly, United States culture must find some way to mediate the ten­sion that exists between its race-neutral rhetorical aspirations and its race-based operational behavior. The claim that the United States has now achieved a post-racial status can best be un­derstood as an effort to serve that function. By conceptual­izing contempo­rary culture as post-racial, we can camouflage the role that race continues to play in the allocation of resources. However, masking the relevance of race does not serve to eliminate it. Ra­ther, the post-ra­cial claim ul­timately serves to legitimate the prac­tice of continued discrimina­tion against racial minorities.

The Supreme Court has always been compli­cit in the practice of sacrificing racial minority interests for the benefit of the white majority. In its more infamous historical decisions, such as Dred Scott,1 Plessy2, and Korematsu,3 the Court’s racial biases have been relatively transparent. More recently, however, the Court has in­voked three tacit post-racial assumptions to justify the contemporary sac­rifice of minority interests in the name of promoting equality for whites. First, current racial minorities are no longer the victims of significant discrimination. Second, as a result, race-conscious efforts to benefit racial minorities at the expense of whites constitute a form of re­verse discrimination against whites that must be prevented in the name of racial equality. Third, because the post-racial playing field is now level, any disadvantages that racial minorities continue to suf­fer must be caused by their own shortcomings rather than by the lingering effects of now-dissi­pated past discrimination. I consider actions that are rooted in these assumptions, and that adversely affect the interests of racial minorities in order to advance the interests of whites, to constitute a form of contemporary discrimination that I refer to as “post-racial discrimination.”

Despite its youth, the Roberts Court has been particularly prone to this form of post-racial discrimination. Perhaps the most damaging post-ra­cial decision issued by the Roberts Court is its 2009 decision in the Ricci v. DeStefano4 New Haven firefighters case. There, the Court appears to have commenced a campaign to eviscerate the racially disparate impact cause of action that was created by the employ­ment discrimination prohibition of Title VII. A prior Supreme Court decision, Wash­ington v. Davis,5 had held that the equal protection guar­an­tees of the Constitution did not prohibit actions that had an unin­tended racially disparate impact. But in an arguable usurpation of legislative policymaking power, the Ricci Court has now smuggled a similar restriction into the realm of con­gressionally created, stat­utory disparate impact claims. Moreover, the Court has even inti­mated that it might also hold statutory disparate impact remedies to be unconsti­tutional as a violation of the equal protec­tion rights of whites.

The Roberts Court’s assault on disparate impact is disturbing because the recognition of a disparate impact cause of action seems to offer the most realistic hope of ever successfully invoking the legal system to help us overcome our cul­tural compulsion to discriminate against racial minorities. History has shown that mere prohibitions on in­tentional discrimination have not been adequate to achieve racial equality. Also, because the nature of our racial discrimination problem is systemic rather than episodic in nature, it is unrealistic to think that the problem could ever be resolved through the use of mere particularized remedies directed at identifiable bad actors. Moreover, we should now real­ize that the enduring persis­tence of racial dis­crimination in the United States demonstrates that argua­bly good intentions alone are insufficient to neutralize what can only be understood as an un­derlying cultural commitment to white privilege.

We do, however, have it within our power to override predictable cul­tural compulsions that we cannot control through acts of mere con­scious volition. By adopting a precom­mitment strategy that focuses on collective conduct rather than individual intent, we can force ourselves to behave in ways that correspond to our more noble as­pirations. In a culture that was free from even subtle forms of unconscious discrimination, resources would typically be distributed in ways that would be free from any appreciable racially disparate im­pact. Accordingly, by viewing as suspect any racially disparate allocations of resources that we do encounter, we could detect and remedy the subtle forms of societal discrimination that have to date escaped redress under the Supreme Court’s intention-based equal­ity jurisprudence. However, by ex­panding to Title VII the hostility to disparate impact claims that was first adopted in the constitutional law context by Washington v. Davis,6 the Roberts Court seems to be moving in precisely the wrong di­rection. It is not only making the attainment of genuine equality more difficult, but in so doing, it is illustrating why the problem of racial discrimination is systemic rather than individualized in na­ture.

Three points are worth emphasizing. First, post-racialism is best understood as simply a new form of a very old tendency in United States culture to discriminate against racial minorities in the name of protecting the so-called equality interests of whites. Second, the modern incarnation of such post-racial discrimination on the Roberts Supreme Court has taken the form of hostility to the statutory disparate impact claims created by Congress under Title VII. Third, this is unfortunate, because the recognition of disparate impact claims is a sensible precommitment strategy for the resolution of the nation’s persistent racial discrimination problem—a problem so deeply embedded in United States culture that it cannot realistically be eradicated through mere voluntary efforts to behave in nondiscriminatory ways. Ultimately, however, I fear that Supreme Court jurisprudence will continue to reject disparate impact claims in the name of post-racialism pre­cisely because the Court is one of the institutions on which the culture relies to perpetuate its systemic discrimination against ra­cial mi­norities.

 
I.
Post-Racialism

The term “racialism” has been used by critical scholars to de­scribe the view that racial discrimination in United States culture constitutes a mere aberrational deviation from the norm of color­blind race neutrality that properly should govern the formulation and implementation of our social policies. Critical scholars consider racialism to be artificially reductionist because it fails to appreciate the degree to which racial considerations are themselves embedded in the very institutions on which we rely to make social policy. As a re­sult, the cultural influence of race is not only systemic and inevita­ble, but it creates a problem that can never be ade­quately ad­dressed by treating racial discrimination as a mere particularized product of individual bad actors. Any meaningful remedy will have to be as systemic in scope as the nature of racial discrimination itself.

If that view is correct, the suggestion that United States culture has now evolved to a post-racial status actually exacerbates the problem of racial discrimination by pretending not only that the phe­nome­non of race is particularized rather than systemic, but that even particularized instances of discrimination have now largely disap­peared. In fact, the Supreme Court is itself one of the social institutions that has historically been responsible for promoting sys­temic discrimina­tion against racial minorities. Moreover, the con­temporary Court has con­tinued that practice by incorporating post­-racial assumptions into its equality jurisprudence. Those post-racial assumptions do not simply misidentify the nature of our dis­crimina­tion problem; they deny that a problem even exists.

The Supreme Court’s post-racial belief that minorities no longer need special legal protections—protections that, in the Court’s view, make minorities the perpetrators rather than the victims of racial dis­crimination—is a view that has now solidified on the Roberts Court. Most strikingly, in the 2009 case of Ricci v. DeStefano,7 the Court invali­dated a refusal by the city of New Haven to utilize the results of a firefighter promotion exam that had a ra­cially disparate impact. Although the city argued that it was trying to avoid a violation of Title VII’s prohibition on employ­ment practices that have an unjustifiable racially disparate impact, the Court held that the city’s race-conscious efforts to avoid a dis­parate impact violation themselves constituted a violation of Title VII’s prohibition on intentional discrimination against white fire­fighters. The Court even suggested that it might in the future be compelled to hold the Title VII disparate impact provision un­constitutional as a violation of the equal protection rights of whites. Perhaps the most sig­nificant feature of such post-racial dis­crimination, therefore, is its insistence on disregarding the racially disparate impact produced by the ways in which we cus­tomarily allocate societal resources.

 II. 
Disparate Impact

In 1976, the Supreme Court held in Washington v. Davis that the equal protection principle of the Constitu­tion prohibited intentional discrimination based on race, but it did not prohibit unintentional actions that had a mere racially disparate impact. Near the end of his majority opinion, Justice White stated that the potentially “far-reach­ing” consequences of a disparate impact standard made its desira­bility a question of legislative rather than judicial compe­tence. However, in the context of Title VII, Congress has spoken.

The 1971 case Griggs v. Duke Power Co.,8 held that the prohibition on employment discrimination contained in Title VII of the Civil Rights Act of 1964 barred both intentional discrimination and employment practices that had an unintended racially disparate impact. In the absence of an adequate showing of job-related business necessity, disparate impact alone was suffi­cient to estab­lish a Title VII violation. The Court reasoned that a prohibi­tion on disparate impact was necessary to prevent prospective dis­crimination through the use of neutral practices that would “oper­ate to ‘freeze’ the status quo of prior discriminatory employment practices.”9 Accordingly, the Griggs Court viewed Congress as having adopted a disparate impact policy that was necessary to any meaningful conception of prospective equality. Not only did Congress acquiesce in Griggs by letting the decision stand for twenty years without statutory modification, but in 1991 Con­gress actually codified Griggs in the Title VII amendments that it adopted as part of the Civil Rights Act of 1991. Despite Griggs and the Civil Rights Act of 1991, the Roberts Court has now chosen to launch an attack on Title VII disparate im­pact.

The Ricci Court’s 2009 invalidation of New Haven’s deci­sion to reject the racially disparate results of its firefighter promotion exam rested on the Court’s conclusion that the City’s effort to avoid a disparate impact violation of Title VII under Griggs would itself constitute an intentional discrimination, “disparate-treatment” violation of Title VII against the seventeen white fire­fighters, and one Latino firefighter, who had scored well on the exam. Justice Kennedy’s majority opinion in the 5–4 decision found that a tension existed between the in­tentional discrimination and disparate impact provisions of Title VII. The Supreme Court did not expressly invalidate Title VII dis­par­ate impact claims in Ricci. Indeed, it purported to recognize the continued existence of such claims. However, it undermined the ability of racial minorities to maintain Title VII disparate im­pact causes of action by holding that disparate impact claims would always be outweighed by the competing intentional dis­crimination claims of whites, unless minorities could show a “strong basis in evidence” for their disparate impact claims.10 It seems quite clear that the “strong basis in evidence” standard can be satisfied only in exceptional cases, if it can ever be satisfied at all. The Court has never found the standard to be satis­fied in any of the con­stitutional affirmative action cases that it cited as giving rise to the standard. In addition, the standard was held not to have been satis­fied under the facts of Ricci itself, even though the presence of less discriminatory, job-related alternatives used by two-thirds of the fire departments in the nation would seem to indicate that the standard should have been easily satisfied under the facts of the case.

The Supreme Court opinion in Washington v. Davis stated that Congress should determine by statute whether the recognition of disparate impact claims is appropriate.11 That observation is consis­tent with separation of powers principles because the politi­cally accountable Congress is institutionally more competent than the politically insulated Supreme Court to formulate racial policy for the nation. There is often a perceived zero-sum relationship between the allocation of limited societal resources to whites and the allocation of those resources to racial minorities. Whites want to retain the resources to which they feel entitled by prior cultural practice, while racial minorities want to escape the disadvantages to which they have been consigned through past discrimination. Re­cognizing this, Congress included a disparate impact provi­sion in its Title VII prohibition on discriminatory employment prac­tices, which it thought would balance the competing employment interests of whites and racial minorities. Racially disparate impact would be tolerated only if it was compelled by job-related business necessity, and only if there was no less discriminatory alternative that could adequately serve an employer’s legitimate business needs. Nevertheless, the Su­preme Court chose to upset the legis­lative balance that Congress struck in Title VII. In its effort to eviscerate Title VII disparate impact claims, therefore, the Roberts Supreme Court has exceeded the legitimate scope of its judi­cial power. It has usurped legislative policymaking power by overriding majoritarian political remedies directed at entrenched modes of racial discrimi­nation. That usurpation is par­ticularly unfortunate because the disparate impact remedies that the Court has chosen to neu­tralize offer the most realistic hope of ever achieving a meaning­ful level of racial equality in the United States.

 III. 
Precommitment

The belief that white interests are more important than racial minority interests is simply a constitutive element of United States culture. One of the things that it means to be an American is to have internalized, at some very fundamental level, the realization that it is permissi­ble to sacrifice minority interests for the benefit of whites. And that realization is often both deep and unconscious in nature. That is why we tolerate the dramatic discrepancies in the allocation of societal resources that continue to exist between whites and racial minorities. If you are white, and you have any lingering doubts about the existence of embedded racial inequalities in the culture, simply ask yourself whether you would mind waking up tomorrow morn­ing as a member of a racial minority group. If the culture has truly freed itself from the influence of embedded racial inequalities, you should be largely indifferent about the race that you will become overnight. But, I suspect that most whites are not indifferent. In­deed, one informal survey showed that white college students thought that they would be entitled to $1 million in damages per year if they were suddenly transformed from white into black.12

The goal of race neutrality is realistically unattainable in a cul­ture where race is as salient as it has always been in the United States. Race is too deeply embedded in our unconscious motiva­tions simply to be rendered irrelevant by conscious efforts to adhere to a race-neutral intent in the way that we allocate resources. Instead, what passes for col­orblind race neutrality is typically just a camouflaged effort to prolong the racial status quo, under which benefits are dispropor­tionately allocated to whites and burdens are disproportionately allocated to racial minorities. Regardless of the degree of sincerity that we bring to the mission, history—and our current maldistribution of resources—indicate that we will never be able to achieve meaningful racial equality simply through an act of will. We do, however, have it within our power to precommit ourselves to con­straints on our collective behavior that will enable us to approx­imate the equality in resource allocation that our embedded racial attitudes apparently preclude us from achieving through mere con­scious efforts to suppress our discriminatory impulses. In fact, cognitive dissonance theory predicts that by forcing our behavior to correspond to our aspirational equality values, our embedded racial attitudes may ultimately evolve to conform to our behavior as well.

In a truly race neutral society, resources would be allocated in a way that reflected the racial balance of the society as a whole. Whites and racial minorities would share the benefits and burdens of society in a way that reflected their respective percentages of the population. Such a vision is presently too utopian to be realistically imagined. But, it does serve to remind us that a culture in which there was genuine racial equality would look very different from the culture in which we presently reside. Although it is difficult to see how we could ever transform ourselves into a culture from which racial discrimination had finally been eradi­cated, it is relatively easy to see how we could begin to approx­imate the allocation of resources that such a culture would contain.

The disparate impact provision of Title VII constitutes a prom­ising precommitment strategy that would hopefully help us achieve more ra­cial equality than our embedded racial habits and attitudes would allow if left to their own devices. By explicitly reaffirming the value of a disparate impact provision in Title VII, Congress ap­parently appreciated the importance of adopting an antidiscrimina­tion strategy that focused on statistical effects rather than on mere invidious intent. Congress apparently recognized that this focus on disparate impact was a necessary step in its effort to displace the continuing effects of entrenched white ad­vantage in employ­ment. And even the then-conservative Burger Supreme Court recognized this when it implied the exis­tence of a disparate impact provision in Griggs. The fact that subsequent Supreme Courts have chosen to back away from dispar­ate impact under the Constitution, and now under Title VII, does not mean that the precommitment strategy adopted by Con­gress has ceased to be a good strategy. On the contrary, it may show that the strategy is so good that the Court feared it would produce more racial equality than the Court was willing to bear. The elimination of identifiable disparate impact seems like such a modest step toward the realization of meaningful racial equality that it is difficult to understand why a Supreme Court committed to the goal of genuine equality would ever resist the chance to remedy disparate impact. But perhaps it is the issue of genuine commitment that is causing the problem. 

 Conclusion

The Supreme Court has not only refused to recognize the legitimacy of disparate impact claims for constitutional purposes, but its recent Ricci decision seems intent on nullifying congres­sional disparate impact claims for statutory purposes as well. Be­cause it is difficult to imagine a non-invidious explanation for the Court’s resistance to such a seemingly sensible precommitment strategy, one cannot help but marvel at the genius of the regime that the culture has created for ensuring the preservation of white privilege. Although the institution of judicial review is sometimes viewed as reflecting an effort to ensure that our transitory baser motives are not permitted to override the more admirable values that are possessed by our better selves, in the context of race the Supreme Court appears to be serving precisely the opposite func­tion. The Supreme Court seems to be the structural institution on which we rely to ensure that our transitory desires to promote ra­cial equality are not permitted to override the less admirable value of white privilege that is possessed by our baser selves.
 

Acknowledgments:

Copyright © 2010 Georgetown University Law Center.

Girardeau A. Spann is a professor at Georgetown University Law Center.

  1. Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 406–07, 453–54 (1857) (hold­ing that blacks could not be citizens within the meaning of the United States Constitution).
  2. Plessy v. Ferguson, 163 U.S. 537, 548, 550–51 (1896) (upholding constitu­tionality of sepa­rate-but-equal regime of racial discrimination in public facilities).
  3. Korematsu v. United States, 323 U.S. 214, 217–18 (1944) (upholding World War II exclusion order that led to Japanese-American internment).
  4. 129 S. Ct. 2658 (2009).
  5. 426 U.S. 229 (1976).
  6. Id.
  7. 129 S. Ct. 2658 (2009).
  8. 401 U.S. 424 (1971).
  9. Id. at 430.
  10. 129 S. Ct. 2658, 2664 (2009).
  11. 426 U.S. 229 (1976).
  12. Andrew Hacker, Two Nations: Black and White Separate, Hostile, Unequal 43–44 (2003).

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