Sunday, April 29, 2012
... [A] cloud hangs over disparate-impact liability. In Ricci v. DeStefano, the United States Supreme Court concluded that an employer's decision to discard an employment practice because it produced a racially disparate impact amounts to a form of racial discrimination against nonminorities, at least absent “a strong basis in evidence to believe it would face disparate-impact liability . . . ." By holding that an employer’s abandonment of an employee selection mechanism because it produces too many successful nonminority candidates amounts to racial discrimination, Ricci cast grave constitutional doubt on disparate-impact liability. Contemporary equal protection jurisprudence requires strict scrutiny for all race-conscious governmental action, even when it has a remedial or otherwise ostensibly benign justification. Indeed, in his separate opinion, Justice Scalia expressed serious doubt about the constitutionality of disparate-impact liability.
Ricci has provoked a torrent of criticism from those who regard it as an indefensible limitation on the ability of the civil rights laws to remediate discrimination. The literature does not yet contain, however, an account that endeavors to harmonize disparate-impact liability with contemporary equal protection jurisprudence. The task of this article is to provide that account. Part I demonstrates that the holding in Ricci was essentially compelled by the structure of contemporary equal protection jurisprudence. Part II endeavors to reconcile disparate-impact liability with strict scrutiny. Part III submits that the the fate of disparate-impact liability tells us much about the character of equal protection. Asking the question whether disparate impact can be saved ultimately tells us whether equal protection jurisprudence is to embody a conception of a colorblind Constitution so robust that it effectively prevents the government from addressing racially skewed inequality of opportunity. While it proves difficult to disentangle race-conscious governmental action, even for remedial purposes, from the rigors of strict scrutiny, Part III contends that there is good reason to resist the view that the government must always remain colorblind, even in the face of demonstrable inequality of opportunity that locks racial minorities into a position of economic disadvantage.