The future of disparate impact.

• Author: Primus, Richard

The Supreme Court's decision in Ricci v. DeStefano 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.

TABLE OF CONTENTS INTRODUCTION I. RICCI v. DESTEFANO A. The Case B. The Ricci Premise C. The Ricci Premise as a Constitutional Proposition 1. Injury 2. Motive 3. Standard for Voluntary Corrective Action II. THREE READINGS OF THE RICCI PREMISE A. The General Reading B. The Institutional Reading C. The Visible-Victims Reading III. COMPELLING INTERESTS A. The Evidentiary Interest B. The Compliance Interest IV. FRAMING THE NEXT CASE CONCLUSION "[T]he war between disparate impact and equal protection will be waged sooner or later, and it behooves us to begin thinking about how--and on what terms--to make peace between them."

--Justice Antonin Scalia, concurring in Ricci v. DeStefano (1)

INTRODUCTION

Thanks to the confirmation hearings of Justice Sonia Sotomayor, Ricci v. DeStefano was the most publicly visible Supreme Court decision of 2009. (2) The basic facts are now famous. In brief, officials in New Haven, Connecticut suspended the city's process for promoting firefighters to officer positions after discovering that a written test that was part of that process had a severely adverse statistical impact on African American firefighters. (3) A group of white firefighters (4) sued, arguing that the city's decision constituted racial discrimination. (5) New Haven contended that its decision was appropriate in light of Title VII of the Civil Rights Act of 1964, which prohibits the use of some written tests with such disparate impacts. (6) The Supreme Court disagreed. In a 5-4 decision, the Court rejected New Haven's claim that its actions were required by Title VII's disparate impact doctrine and held instead that New Haven had violated Title VII's prohibition on disparate treatment--that is, its ban on formal or intentional discrimination. (7)

The Court did not rule on the plaintiffs' further claim that New Haven had also violated the Equal Protection Clause of the Fourteenth Amendment. (8) But that gesture of constitutional avoidance does not conceal the deeper issue that the Ricci litigation raised. That issue, in short, is whether Title VII's disparate impact doctrine, which requires employers and public officials to classify the workforce into racial categories and then allocate social goods on the basis of that classification, can be consistent with equal protection after decisions like Adarand Constructors, Inc. v. Pena (9) and Parents Involved in Community Schools v. Seattle School District No. 1. (10) The problem is both legally complex and symbolically sensitive, and the Ricci majority practiced sound judicial craft in declining to resolve it when a statutory ground of decision was available. Now that the issue has come to the foreground, however, it is unlikely to disappear. In Justice Scalia's words, the Court's statutory ruling "merely postpones the evil day on which the Court will have to confront the question." (11)

That the question is being asked at all represents a complete turnabout in antidiscrimination law. Once upon a time, the burning issue about equal protection and disparate impact was whether the Fourteenth Amendment itself embodied a disparate impact standard. (12) The Court rejected that idea in Washington v. Davis, but in doing so it also opined that Congress could create disparate impact standards at the statutory level. (13) Until recently, therefore, the idea that a statutory disparate impact standard could violate equal protection was all but unthinkable.

Times change. Seven years ago, I noted that the Supreme Court's decreasing tolerance for race-conscious decisionmaking was creating tension between the Fourteenth Amendment and disparate impact doctrine under Title VII, and I analyzed the several ways that the two doctrinal frameworks might be either reconciled or found to conflict. (14) That analysis was partly an exercise in canvassing possibilities. There is more than one way to understand equal protection, and there is more than one way to understand disparate impact, and whether the two are compatible depends on which interpretation of each is on the table. (15) Ricci makes matters more determinate, because it says a fair amount about how the Supreme Court understands disparate impact under Title VII. It also signals that what was once academic speculation is now judicially actionable. In this Article, therefore, I explain what Ricci means for the future of disparate impact doctrine.

At the heart of the New Haven decision lies an idea that we can call the Ricci premise: that the city's suspension of the written test would constitute disparate treatment under Title VII unless suspending the test were justified by Title VII's provisions regarding disparate impact. (16) In other words, Ricci portrayed disparate impact doctrine as creating an exception to Title VII's prohibition on formal or intentional discrimination. The view that disparate impact doctrine constitutes an exception to disparate treatment doctrine entails the view that the two doctrines are conceptually in conflict--or, more precisely, that they would be in conflict if one were unable to carve itself out of the other. The Court articulated this vision as a matter of statutory construction, (17) but it clearly implies a constitutional proposition as well. For these purposes, Title VII's prohibition of disparate treatment and the Fourteenth Amendment's guarantee of equal protection are substantively interchangeable. (18) A conflict between disparate impact and disparate treatment is also a conflict between disparate impact and equal protection. And that makes things look bleak for the disparate impact standard. A Title VII doctrine can stand its ground against another Title VII doctrine, but not against the Constitution.

Yet we should not rush too quickly to the conclusion that Ricci heralds the end of disparate impact law. Considered carefully, the Ricci premise can be read in three different ways. Call them the general reading, the institutional reading, and the visible-victims reading. Whether Title VII's disparate impact standard can survive future constitutional attack depends on which of these three readings prevails in cases to come.

On the general reading, the Ricci premise means that the actions necessary to remedy a disparate impact violation are per se in conceptual conflict with the demands of disparate treatment doctrine (and, implicitly, the demands of equal protection). Disparate impact doctrine is race conscious; equal protection requires racial neutrality; the two are not compatible. This seems to be Justice Scalia's reading of Ricci. (19) It is also Ronald Dworkin's, albeit with a different normative spin. (20) The general reading is plausible, straightforward, and likely fatal for disparate impact doctrine. But it is not the only reading available, and it may not be the best one.

The institutional reading of the Ricci premise focuses on a difference between courts and public employers. On this view, a municipal employer's attempt to implement a disparate impact remedy is in conceptual conflict with the prohibition on disparate treatment (and implicitly with the requirements of equal protection) not because any disparate impact remedy is discriminatory but because public employers, unlike courts, are not authorized to engage in the race-conscious decisionmaking that disparate impact remedies entail. Judges are responsible for remedying racial discrimination, and that task requires more leeway to take note of race than other public officials have. (A requirement of complete judicial colorblindness would undermine all of antidiscrimination law, because courts cannot assess garden-variety discrimination claims without knowing the race of the parties involved.) Conversely, public employers face pressures that make it unwise to leave them with too much discretion to invoke disparate impact doctrine to justify racially conscious hiring decisions. (21) If the Ricci premise is read through this institutional lens, courts can continue to enforce Title VII's disparate impact doctrine, even if public employers will have to tread more carefully.

Third and last, there is a visible-victims reading. It holds that the problem in New Haven's case was not the race-consciousness of the city's decision per se but the fact that the decision disadvantaged determinate and visible innocent third parties--that is, the white firefighters. Most disparate impact remedies avoid creating such victims. And within the category of formally race-neutral actions intended to improve the position of disadvantaged racial groups, equal protection doctrine may well distinguish between those that have visible victims and those whose costs are more diffuse. (22)

Many people to both the left and the right of the Supreme Court may consider this distinction unprincipled. If race-conscious decisionmaking is objectionable, one might contend, then it is objectionable whether its allocative effects are visible or not. (23) Conversely, if some race-conscious decisionmaking is permissible, its permissibility should not depend on its being kept secret. (24) These objections have force. That said, the distinction between more and less visible race-conscious interventions is already present in equal protection caselaw, (25) and it may well be defensible, or even wise. If the Court ultimately reads Ricci through a visible-victims prism, Title VII's disparate impact doctrine can survive, because the standard judicial remedies all avoid creating visible victims: the Ricci plaintiffs suffered in the New Haven case only because the city acted more aggressively than a court enforcing a disparate impact order would have. (26)

In Part I...