The War Between Disparate Impact and Equal Protection

Cato Supreme Court Review, Vol. 2008-2009, 2009

32 Pages Posted: 26 Aug 2009 Last revised: 31 Aug 2009

See all articles by Kenneth L. Marcus

Kenneth L. Marcus

The Louis D. Brandeis Center for Human Rights Under Law

Date Written: August 26, 2009


“The way to stop discrimination on the basis of race,” Chief Justice John Roberts recently wrote, “is to stop discriminating on the basis of race.” In other words, state actors can best achieve equal treatment by eliminating all governmental racial preferences. This position contrasts with Justice Harry Blackmun’s equally canonical view that “in order to get beyond racism, we must first take account of race.” To the extent that anti-discrimination jurisprudence now adopts (or shuttles between) these conflicting views, a difficult question emerges for disparate-impact doctrine: under what circumstances, if any, can state actors take race-conscious actions in order to avoid the unintended discrimination that might otherwise result from facially neutral policies? Specifically, are race-conscious actions undertaken to conform to disparate impact law consistent with the Constitutional guarantee that no person will be denied “the equal protection of the laws”? Although posed in Ricci v. DeStefano, the issue is not resolved there. As Justice Antonin Scalia observed in his concurrence to that decision, the Court’s narrow resolution of the New Havens firefighters’ case “merely postpones the evil day” the Court will have to decide the central, looming question: “Whether, or to what extent, are the disparate-impact provisions of Title VII of the Civil Rights Act of 1964 consistent with the Constitution’s guarantee of equal protection?” As Scalia points out, “the war between disparate impact and equal protection will be waged sooner or later…it behooves us to begin thinking about how - and on what terms - to make peace between them.” This article will argue that equal protection is consistent with disparate impact only when the latter provision is narrowly construed. Since Title VII’s disparate-impact provision is based in significant measure on a less-than-compelling rationale, this Article will argue that it must be narrowed or struck down.

Keywords: equal protection, disparate impact, disparate treatment, New Haven, preferences

JEL Classification: J70

Suggested Citation

Marcus, Kenneth L., The War Between Disparate Impact and Equal Protection (August 26, 2009). Cato Supreme Court Review, Vol. 2008-2009, 2009, Available at SSRN:

Kenneth L. Marcus (Contact Author)

The Louis D. Brandeis Center for Human Rights Under Law ( email )

1717 Pennsylvania Avenue, NW, Suite 1025
Washington, DC DC 20006
United States

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