Friday, January 14, 2011
Is integration a form of discrimination? Remarkably, recent Supreme Court doctrine suggests that the answer to this question may well be yes. In Ricci v. DeStefano, the Court characterizes - for the very first time - government action taken to avoid disparate-impact liability and to integrate the workplace as "race-based," and then invalidates that action under a heightened level of judicial review. Consequently, Ricci suggests that the Court is open to the "equivalence doctrine," which posits that laws intended to racially integrate are morally and constitutionally equivalent to laws intended to racially separate. Under the equivalence doctrine, integration is simply another form of discrimination. The Court has not yet fully embraced this view. Ricci contains a significant limiting principle: In order to be actionable, the government’s action must create racial harm, i.e., single out individuals on the basis of their race for some type of adverse treatment. Thus, the lesson of Ricci is not that governmental action with an integrative motive is always prohibited (at least for now); instead it is that racial harm really matters. The challenge for the government seeking to increase integration is to design facially race-neutral programs that open up access to opportunity and increase integration without imposing racial harm.