Wednesday, February 5, 2014

Can Anti-Affirmative Action Cases Be Used to Attack Discrimination Against Minorities?

Wendy Parker’s new article, Recognizing Discrimination: Lessons from White Plaintiffs, 65 Fla. L. Rev. 1871 (December 2013), offers a unique perspective on the Court's holding in Parents Involved and other recent race cases.  In particular, she frames the cases in such a way that they could be of benefit to civil rights advocates rather than just hindrances.  Parker argues that the majority in Parents Involved changed the meaning of discrimination from substantive discrimination, which originated with the Warren Court, to process discrimination. Process discrimination occurs “from the process of different treatment, without proof of any attending substantive harm.”  She also emphasizes that Fisher v. Texas was premised on process rather than substantive discrimination.

She theorizes that process discrimination, as an aggressive colorblind principle, can ultimately help plaintiffs of all races in discrimination suits because it allows plaintiffs to more easily show that their race was part of the decision that caused them harm. Prof. Parker illustrates this with a hypothetical:

Consider a manager, working for a state, who fired a Latino worker with one single utterance negative to his Latino heritage. Any attending lawsuit would traditionally ask whether the worker was fired because of ethnicity. That single utterance would do little in demonstrating why the worker was fired. Instead, the issue would be whether the Latino worker deserved to be fired, or whether the plaintiff's ethnicity caused the firing. Parents Involved shifted the focus away from the firing issue to a process question: Did the manager treat the Latino worker differently than a non-Latino worker during the firing process? Would the manager have made the statement to a white worker? If not, then the manager was discriminatory under the reasoning of Parents Involved. Likewise, the question in Fisher is now whether Ms. Fisher was treated differently during the admissions process-not whether she would have been admitted if she were African-American or Latino.

My forthcoming article in a Fisher symposium frames Parents Involved and Fisher as a triumph of form over function, and bears a lot of similarity to Parker's.  What she calls "process" I call "form," and what she call "substance" I call "function."  In other words, we read the cases the same, but put different labels on them.  The current conclusion of my paper, however, takes a different route than Parker.  I conclude that the focus on form benefits whites and disadvantages minorities, primarily because the harm that typically falls on minorities is not explicit.  Instead, the harms minorities suffer are often the result of the way the system functions.  This type of harm escape judicial scrutiny under an analysis heavily weighted toward form.  

Parker's article, however, would indicate that form over function is not all bad.  Minorities just have to embrace the new paradigm and marshall it to their benefit in the same way opponents of affirmative action have--an extremely important and insightful point that I overlooked in my pessimistic analysis of the cases.

An earlier version of the paper is available here on ssrn.

Discrimination, Racial Integration and Diversity | Permalink


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