Discrimination by proxy.

• Author: Alexander, Larry

1. THE PRINCIPLES

   Here are three well-settled principles of constitutional law:

   The Anti-Discrimination Principle. Government cannot use racial classifications, even as the most cost-effective proxies for other traits, unless using them as the most cost-effective proxies is necessary to further a compelling interest.(1) (The same holds for use of a gender classification as a cost-effective proxy, except government's burden is lower: the classification must be substantially related to an important interest.(2)).

   The Disparate Impact Principle. A non-racial (or nongender) classification that produces a disparate racial (or gender) impact is not forbidden on that ground by itself.(3)

   The Intent Principle. However, a non-racial (or nongender) classification adopted as a close proxy for race (or gender)--that is, because of its disparate impact--is assessed the same way as an explicit racial (or gender) classification, that is, under the Anti-Discrimination Principle.(4)

2. THE PROBLEM

   Now consider the admissions policies of three hypothetical state-supported law schools in, say, the plains states:

   School A has admitted students solely on the basis of how they score on the LSAT. It has recently discovered that the LSAT overpredicts the performance of blacks relative to whites. It does not believe that race is causally related to the variation between predicted and actual performance; rather, it believes that race merely correlates with other factors that are causally related to that variation. However, it is unable either to identify those factors or to test for them in any way that would be cost-effective. It determines that classifying LSAT scores on the basis of the race of the applicant and then discounting the scores of all black applicants is the most cost-effective way of improving the performance of its entering class. University counsel concludes, however, that such a policy would violate the Anti-Discrimination Principle.

   School B has historically followed the same admissions policy as School A, that is, admitting those with the highest LSAT scores. Recently, however, School B has decided for a variety of reasons to become a "regional" law school and restrict admissions to applicants from the plains states. It expects student quality to decline somewhat, at least in the short term, because of the constriction of the applicant pool. However, it discovers that its incoming students under the new policy, despite a lower average LSAT score, are outperforming previous entering classes.

   School C, surprised by the news from School B, asks a statistician to analyze School B's policies. The statistician reports that the performance of School B's students is due to the fact that there are few black applicants to law school in the plains states. In the past, most of the white applicants to Schools A, B, and C had come from the plains states, but most of the black applicants had come from outside the region. Therefore, School B's policy, while not as effective in improving performance as the racial classification that School A rejected as unconstitutional, is more effective than an unrestricted admissions policy based solely on LSAT because it has an effect similar to the rejected racial classification.

   School C would like to adopt the "plains states only" admissions policy of School B. Its sole reason is that it believes the performance of its students will improve. It asks University counsel whether that policy, adopted for that reason, would violate the Intent Principle rather than merely come under the Disparate Impact Principle. How should University counsel answer?

3. UNDERSTANDING THE RELATIONSHIP AMONG THE PRINCIPLES

   University counsel should begin by analyzing the relation among the three principles. The Disparate Impact Principle, although frequently criticized prior to Washington v. Davis,(5) is now relatively uncontroversial, as it should be. All laws have disparate impact along the axes of race, gender, national origin, religion, and so on. Unless all laws require a compelling interest to justify them--in which case either the nature of a compelling interest will be denatured or no set of laws will be constitutional except for that set that produces perfect group equality among all protected groups and in all respects--disparate impact will have to be treated as different constitutionally from racial and similar classifications. The Disparate Impact Principle is, therefore, unassailable.

   If the Disparate Impact Principle is in place, then the Intent Principle is necessary to prevent easy circumvention of the Anti-Discrimination Principle. If government may not discriminate against blacks in the absence of a compelling interest, but it may discriminate against a "group" that has a ninety-nine percent overlap with "blacks" with only a permissible interest, then the Anti-Discrimination Principle will prove ineffective.

   The question University counsel must answer is whether School C's adoption of the regional restriction falls under the Disparate Impact Principle, in which case it is permissible, or under the Intent Principle, in which case it is not. Because the Intent Principle is there to prevent circumvention of the Anti-Discrimination Principle through the Disparate Impact Principle, deciding whether this case falls under the Disparate Impact Principle or the Intent Principle requires further analysis of the Anti-Discrimination Principle.

4. THE ANTI-DISCRIMINATION PRINCIPLE AND TYPES OF RACIAL (AND GENDER) CLASSIFICATIONS

   Understanding the Anti-Discrimination Principle--and hence the Disparate Impact and Intent Principles--requires asking why government might employ racial and other suspect and...