“Desperate” Impact?

As the Supreme Court begins a new session, the Cato Institute held its 8th annual Constitution Day Conference and Supreme Court Review on September 17, 2009. This day also marked the 222nd anniversary of the adoption of the U.S. Constitution, and panelists discussed whether the Supreme Court decisions of the previous year were faithful to the intentions of our Founding Fathers.

Roger Clegg, President and General Counsel for the Center for Equal Opportunity, called the “disparate impact” approach to civil rights law used by the Court in cases such as Ricci v. DiStefano a “very bad idea” and “unconstitutional to boot.”

Ricci, a case decided by Justice Sonia Sotomayor while she was a judge on the 2nd Circuit, involved an employment test disputed by a group of white firefighters in New Haven, Conn. The Supreme Court overruled Ricci in a 5 to 4 decision, saying that by ignoring the test results (which disproportionately favored the white firefighters), New Haven violated Title VII of the Civil Rights Act of 1964.

“I think the Ricci case opens the door for litigants to challenge disparate impact in any of the realms in which it’s raised, and we know that the Obama administration is planning to use it aggressively,” said Kenneth Marcus, the Ackerman Chair at the City University of New York (CUNY)/Baruch College School of Public Affairs.

Critics of the disparate impact approach oppose the idea that employers should have to take race, ethnicity or gender into account at all when making a hiring decision. This opposition is based on the idea that the allegedly benevolent purposes of the disparate impact approach do not justify what amounts to racial preferences and reverse discrimination.

“If you ask the man on the street to define racial discrimination, he would give you a definition like ‘disparate treatment,’ that is, treating people differently because of their skin color,” Clegg said. “But if you had…a selection criteria that was chosen that did not discriminate on its face because of race and was not chosen because of the racially discriminatory effect it would have and it was applied to everybody equally without regard to race, the man on the street would not call that discrimination.”

The panel then turned to Section 2 of the Voting Rights Act (VRA), a piece of legislation that began with the intent of combating racial discrimination in voting, but which some argue has been used in such a way as to mandate racial gerrymandering, or quotas of elected officials.

“As a result of this…Section 2’s principal use today in 2009 is to require…the segregation of voters by race…in order to ensure that there is racial proportionality in elected officials,” Clegg argued.

“We can look forward to disparate impact lawsuits in the housing area, in the credit area…and we already know that it applies to firefighters…if they are required to pass a test showing that they know something about firefighting,” he added.

The case of Bartlett v. Strickland raised the question of whether the application of Section 2 of the VRA requires racial gerrymandering-even in instances where the racially gerrymandered district would not result in a majority of minority voters.

The Supreme Court rejected this argument. Clegg called this ruling “a good thing,” adding that “as bad as it is to have racial gerrymandering at all, requiring racial gerrymandering in any district where there is any appreciable minority population would have increased the amount of racial gerrymandering in the United States exponentially.”

Northwest Austin Municipality Utility District Number One (NAMUDNO) v. Holder challenged the constitutionality of Section 5 of the VRA, which required any change in voting practice and procedures to be cleared by the Federal Government. The Court declined to rule on Section 5’s constitutionality, instead allowing the NAMUDNO district to “bail out” of the provision.

“Chief Justice Roberts made it clear that in a case that is brought in the future, there were going to be real problems upholding the constitutionality of Section 5,” Clegg noted.

Marcus argued that employers would be subjected to disparate impact liability if they do not mandate a “racial balance in the workforce.” These trends stem back to 1972, when Title 7 of the Civil Rights Act of 1964 was extended to the public sector.

“At first blush…disparate impact does not seem to provide an equal protection problem …however, entities which are eager to comply with Title 7 are frequently required to classify their employees or other recipients or beneficiaries on racial terms…in order to comply,” Marcus said.

Marcus was concerned that if motive was no longer taken into consideration as the basis for showing discriminatory intent, it may prove difficult for the disparate impact test to meet the requirements for strict scrutiny.

“When the Court does revisit this question of what [Justice] Scalia calls the ‘war between equal protection and disparate impact,’ they will have to decide first whether disparate impact is really just about rooting out discrimination. And they will likely find that it isn’t,” he argued.

As the Supreme Court begins a new session, the Cato Institute held its 8th annual Constitution Day Conference and Supreme Court Review on September 17, 2009. This day also marked the 222nd anniversary of the adoption of the U.S. Constitution, and panelists discussed whether the Supreme Court decisions of the previous year were faithful to the intentions of our Founding Fathers.

Roger Clegg, President and General Counsel for the Center for Equal Opportunity, called the “disparate impact” approach to civil rights law used by the Court in cases such as Ricci v. DiStefano a “very bad idea” and “unconstitutional to boot.”

Ricci, a case decided by Justice Sonia Sotomayor while she was a judge on the 2nd Circuit, involved an employment test disputed by a group of white firefighters in New Haven, Conn. The Supreme Court overruled Ricci in a 5 to 4 decision, saying that by ignoring the test results (which disproportionately favored the white firefighters), New Haven violated Title VII of the Civil Rights Act of 1964.

“I think the Ricci case opens the door for litigants to challenge disparate impact in any of the realms in which it’s raised, and we know that the Obama administration is planning to use it aggressively,” said Kenneth Marcus, the Ackerman Chair at the City University of New York (CUNY)/Baruch College School of Public Affairs.

Critics of the disparate impact approach oppose the idea that employers should have to take race, ethnicity or gender into account at all when making a hiring decision. This opposition is based on the idea that the allegedly benevolent purposes of the disparate impact approach do not justify what amounts to racial preferences and reverse discrimination.

“If you ask the man on the street to define racial discrimination, he would give you a definition like ‘disparate treatment,’ that is, treating people differently because of their skin color,” Clegg said. “But if you had…a selection criteria that was chosen that did not discriminate on its face because of race and was not chosen because of the racially discriminatory effect it would have and it was applied to everybody equally without regard to race, the man on the street would not call that discrimination.”

The panel then turned to Section 2 of the Voting Rights Act (VRA), a piece of legislation that began with the intent of combating racial discrimination in voting, but which some argue has been used in such a way as to mandate racial gerrymandering, or quotas of elected officials.

“As a result of this…Section 2’s principal use today in 2009 is to require…the segregation of voters by race…in order to ensure that there is racial proportionality in elected officials,” Clegg argued.

“We can look forward to disparate impact lawsuits in the housing area, in the credit area…and we already know that it applies to firefighters…if they are required to pass a test showing that they know something about firefighting,” he added.

The case of Bartlett v. Strickland raised the question of whether the application of Section 2 of the VRA requires racial gerrymandering-even in instances where the racially gerrymandered district would not result in a majority of minority voters.

The Supreme Court rejected this argument. Clegg called this ruling “a good thing,” adding that “as bad as it is to have racial gerrymandering at all, requiring racial gerrymandering in any district where there is any appreciable minority population would have increased the amount of racial gerrymandering in the United States exponentially.”

Northwest Austin Municipality Utility District Number One (NAMUDNO) v. Holder challenged the constitutionality of Section 5 of the VRA, which required any change in voting practice and procedures to be cleared by the Federal Government. The Court declined to rule on Section 5’s constitutionality, instead allowing the NAMUDNO district to “bail out” of the provision.

“Chief Justice Roberts made it clear that in a case that is brought in the future, there were going to be real problems upholding the constitutionality of Section 5,” Clegg noted.

Marcus argued that employers would be subjected to disparate impact liability if they do not mandate a “racial balance in the workforce.” These trends stem back to 1972, when Title 7 of the Civil Rights Act of 1964 was extended to the public sector.

“At first blush…disparate impact does not seem to provide an equal protection problem …however, entities which are eager to comply with Title 7 are frequently required to classify their employees or other recipients or beneficiaries on racial terms…in order to comply,” Marcus said.

Marcus was concerned that if motive was no longer taken into consideration as the basis for showing discriminatory intent, it may prove difficult for the disparate impact test to meet the requirements for strict scrutiny.

“When the Court does revisit this question of what [Justice] Scalia calls the ‘war between equal protection and disparate impact,’ they will have to decide first whether disparate impact is really just about rooting out discrimination. And they will likely find that it isn’t,” he argued.

Brittany Fortier is an intern at the American Journalism Center, a training program run by Accuracy in Media and Accuracy in Academia.