Friday, October 30, 2009
Richard Primus (Michigan), cited by both the majority and dissent in Ricci, has just posted on SSRN his article (forthcoming 108 Michigan L. Rev.) The Future of Disparate Impact After Ricci. Here's the abstract:
The Supreme Court's decision in Ricci v. DeStefano (i.e., the New Haven firefighters case) foregrounded the question of whether Title VII's disparate impact standard conflicts with equal protection. This Article shows that there are three ways to read Ricci, one of which is likely fatal to disparate impact doctrine but the other two of which are not.
This is a fascinating article, with strategic advice for advocates on both sides of the debate. Here's an excerpt:
[T]he Supreme Court’s choice among the three readings may be substantially driven by the way the next case to reach the Supreme Court frames the question. The full analysis is complex, but it hinges on a question of visibility. The Court is more likely to sustain disparate impact doctrine if it can do so without appearing indifferent to the situation of innocent third parties who are clearly bearing the cost of race-conscious decisionmaking. Accordingly, the Court is most likely to adopt the general reading and hold disparate impact unconstitutional in a case like Ricci itself, a case featuring visible innocent victims. Given that employer-initiated disparate impact remedies can create such third-party victims but judicially imposed disparate impact remedies do not, disparate impact doctrine is in greatest danger of being held unconstitutional in cases where employers voluntarily seek to comply with Title VII, just as New Haven claimed to be doing.
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Cause-oriented lawyers who seek the demise of the disparate impact doctrine should be looking for cases with visible victims. Their opposite numbers should try to have the constitutional question resolved in a case involving only a forward-looking judicial remedy, and preferably one where the defendant seems unsympathetic, before a less favorable vehicle can reach the Supreme Court. To be sure, the choice of case might not completely determine the outcome any more than the choice of physical ground need completely determine a battle. But concerned parties are nonetheless well advised to do what they can.