Race-Conscious But Race-Neutral: The Constitutionality of Disparate Impact in the Roberts Court
37 Pages Posted: 17 Dec 2014
Date Written: December 16, 2014
Ricci v. DeStefano, the New Haven firefighters case, raised questions about the constitutionality of the disparate impact provisions of federal employment discrimination law. This Article draws on the Court’s subsequent decision in Fisher v. University of Texas at Austin to clarify disparate impact’s constitutionality. In Fisher, no Justice expressed concern about Texas’s decision to promote diversity at the state university by admitting the top percent of the state’s high school graduates — state action that is race-conscious in purpose, but race-neutral in form. Approval of the percent plan in Fisher shows that under equal protection law of the Roberts Court disparate impact law is not unconstitutional in purpose, as Justice Scalia suggested in Ricci. In Fisher, the Court has demonstrated that government may change the selection standards in competitive processes without triggering strict scrutiny if the government acts (1) with a race-conscious goal of promoting equal opportunity; (2) the government requires a selection standard that is appropriate for the context; and (3) the standard does not classify individuals by race. These principles are satisfied in the ordinary case of voluntary disparate impact compliance in which an employer specifies conditions for employment in advance of evaluating applicants for the job in question, as well as in prospective remedies that courts ordinarily order for violations of Title VII.
Fisher clarifies that the problem in Ricci was New Haven’s procedurally irregular means of complying with disparate impact law: the government discarded the test results of a group of applicants who had invested significant time in studying for a promotion exam, and explained this decision in terms which left the disappointed applicants with the impression that government was discarding their scores to advance the interests of another racially defined group. By avoiding a constitutional judgment and finding New Haven’s manner of complying with the statute unlawful disparate treatment, Justice Kennedy warns that interventions designed to heal social division should be implemented in ways that endeavor not to aggravate social division.
Disparate impact law can promote equal opportunity, increase employee confidence in the fairness of selection criteria, and so reduce racial balkanization; but for disparate impact law to do so, Justice Kennedy seems to be saying in Ricci, disparate impact law needs to be enforced with attention to all employees’ expectations of fair dealing.
Keywords: discrimination, equal protection, disparate impact, employment, fair housing
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