The Disproportionate Impact Theory of Racial Discrimination
51 Pages Posted: 10 Aug 2020
Date Written: July 23, 2020
What is the relevance of the phenomenon of disproportionate racial impact to the constitutional right to the equal protection of the laws?
Under the constitutional right to equal protection, properly understood, government may not disadvantage any human being based either on the view that she is morally inferior or on a sensibility to that effect—a sensibility such as (what Paul Brest termed) “racially selective sympathy and indifference,” namely, “the unconscious failure to extend to a [racial] minority the same recognition of humanity, and hence the same sympathy and care, given as a matter of course to one’s own group.” As Robin Kar and John Lindo have explained: “Many people who treat each other differently . . . exhibit unconscious patterns of attention, inference and concern, which make it easier for them to identify the interests of their in-group while overlooking those of out-groups. This explains why democratic processes cannot be relied upon to guarantee the equal treatment of persons under the law.” Robin Bradley Kar and John Lindo, “Race and the Law in the Genomic Age: A Problem for Equal Treatment under the Law,” in Roger Brownsword, Eloise Scotford, and Karen Yeung, eds., The Oxford Handbook of Law, Regulation and Technology 874 (2017), available at: https://ssrn.com/abstract=2629819.
Kar and Lindo rightly conclude that the Supreme Court should “revise its interpretation of the Equal Protection Clause [so as to allow] for broader and more vigorous constitutional protection against disparate impact caused by either intentional discrimination or psychological processes that regularly function to cause disparate treatment.” See also Osagie K. Obasogie, “The Supreme Court Is Afraid of Racial Justice,” New York Times, June 7, 2016. I defended the same position at length—and in the course of doing so critiqued the U.S. Supreme Court’s then-recent decision in Washington v. Davis (1976)—in this article: “The Disproportionate Impact Theory of Racial Discrimination”.
The relevance of the phenomenon of disproportionate racial impact remains an important and contested issue in equal protection theory, and my analysis and arguments in the article available here are no less sound today than they were in 1977, when the article was first published.
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