Equal Protection and Disparate Impact: Round Three Richard A

University of Michigan Law School University of Michigan Law School Scholarship Repository Articles Faculty Scholarship 2003 Equal Protection and Disparate Impact: Round Three Richard A. Primus University of Michigan Law School, [email protected] Available at: https://repository.law.umich.edu/articles/527 Follow this and additional works at: https://repository.law.umich.edu/articles Part of the Civil Rights and Discrimination Commons, Fourteenth Amendment Commons, Law and Race Commons, Legislation Commons, and the Supreme Court of the United States Commons Recommended Citation Primus, Richard A. "Equal Protection and Disparate Impact: Round Three." Harv. L. Rev. 117, no. 2 (2003): 494-587. This Article is brought to you for free and open access by the Faculty Scholarship at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Articles by an authorized administrator of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. HARVARD LAW REVIEW [Vol. 11I7:493 EQUAL PROTECTION AND DISPARATE IMPACT: ROUND THREE Richard A. Primus* Prior inquiries into the relationshipbetween equal protection and disparate impact have focused on whether equal protection entails a disparate impact standard and whether laws prohibiting disparate impacts can qualify as legislation enforcing equal protection. In this Article, Professor Primus focuses on a third question: whether equal protection affirmatively forbids the use of statutory disparate impact standards. Like affirmative action, a statute restricting racially disparate impacts is a race-conscious mechanism designed to reallocate opportunitiesfrom some racial groups to others. Accordingly, the same individualist view of equal protection that has constrained the operation of affirmative action might also raise questions about disparate impact laws. Those questions can be satisfactorily answered: the disparate impact standards of statutes such as Title VII are not now unconstitutional. But by exploring the tensions between those standards and the now-prevailing view of equal protection, the Article illuminates many indeterminacies in both of those legal concepts. It also argues against interpreting disparate impact standards in ways that most easily align with the values of individualist equal protection. Such interpretations offer easier defenses against constitutional attack, but they also threaten to cleanse antidiscrimination law of its rematning concern with inherited racial hierarchy. INTRODUCTION T he relationship between equal protection and facially neutral practices with discriminatory effects has been the subject of two rounds of legal questions. In the first round, the issue was whether courts would sustain equal protection challenges to facially neutral state action that was not intended to be discriminatory but had dis- *Assistant Professor of Law, University of Michigan. My foremost thanks go to Evan Caminker, David Franklin, Don Herzog, Deborah Malamud, and Reva Siegel. No less sincerely, I thank Richard Banks, Steve Croley, John Donohue, Danna Drori, Ariela Dubler, Noah Feldman, Sam Gross, Daniel Halberstam, Michael Heller, Rick Hills, Bradley Joondeph, Ellen Katz, Anna- Rose Mathieson, Nina Mendelson, John Pottow, Cathy Sharkey, Jeannie Suk, Nelson Tebbe, Mark Tushnet, Molly S. Van Houweling, Christina Whitman, Katrina Wyman, the participants in workshops at the Georgetown University Law Center and Harvard Law School, and the denizens of Kalorama College and Mintwood Manor. For help with research, I thank Adam Flake and Hope Spencer, as well as Margaret Leary and the staff of the University of Michigan Law Li- brary. Research for this Article was funded in part by the Cook Endowment. I also thank Karen Rushlow for terrific administrative assistance and the students in my Fall 2002 seminar on disparate impact law for their patient and gentle skepticism. HeinOnline -- 117 Harv. L. Rev. 494 2003-2004 200o31 EQUAL PROTECTION AND DISPARATE IMPACT criminatory effects.' Washington v. Davis2 answered no to that question, leaving the choice whether to impose disparate impact standards to legislators.3 In the second round, the issue was whether federal statutes prohibiting facially neutral practices with racially disparate impacts were valid only as commerce legislation or also as means of enforcing equal protection under Section 5 of the Fourteenth Amend- ment.4 This Article raises a third issue, one that lies beyond the Sec- tion 5 question. Rather than asking whether equal protection is a source of authority for disparate impact statutes, this Article examines whether equal protection could prohibit the passage of such statutes because of their overt concern with race. The question is analytic and conceptual rather than predictive: it seems unlikely that disparate impact law will actually be held unconstitutional. Nonetheless, there are serious conceptual tensions between modern equal protection doctrine and disparate impact law, tensions that are worth exploring for the light they shed on both disparate impact law and equal protection itself. The idea that equal protection might affirmatively prohibit the use of statutory disparate impact standards departs significantly from set- tled ways of thinking about antidiscrimination law.5 The Davis Court itself said in dicta that Congress could use disparate impact standards I See, e.g., Paul Brest, The Supreme Court, 1975 Term-Foreword: In Defense of the Antidis- crimination Principle, 9o HARv. L. REV I, 4-5, 22-26 (1976); Owen M. Fiss, Groups and the Equal Protection Clause, 5 PHIL. & PUB. AFF. 107, 141-46 (976). 2 426 U.S. 229 (1976). 3 Id. at 248. 4 Between City of Boerne v. Flores, 521 U.S. 507, 536 (1997), which invalidated the Religious Freedom Restoration Act of 1993 as exceeding Congress's Section 5 power, and Nevada Depart- ment of Human Resources v. Hibbs, 123 S. Ct. 1972, i98i (2003), which sustained the Family and Medical Leave Act as a valid exercise of that power, the scope of Congress's Section 5 enforce- ment power was a dominant preoccupation of leading public law theorists. See, e.g., Christine Jolls, Antidiscriminationand Accommodation, 115 HARv. L. REv 642 (2ooi); Larry D. Kramer, The Supreme Court, 2ooo Term-Foreword: We the Court, ii5 HARV. L. REV 4, 136-53 (2001); Daniel J. Meltzer, Congress, Courts, and Constitutional Remedies, 86 GEO. L.J. 2537 (1998); Robert C. Post & Reva B. Siegel, Equal Protection by Law: Federal Antidiscrimination Legisla- tion After Morrison and Kimel, 1o YALE L.J. 441 (2ooo); Robert C. Post & Reva B. Siegel, Legis- lative Constitutionalism and Section Five Power: Policentric Interpretation of the Family and Medical Leave Act, 112 YALE L.J. 1943 (2003). Whether the Section 5 power is broad enough to support Title VII's disparate impact doctrine has also been a contested question among lower courts. Compare Okruhlik v. Univ. of Ark. ex tel. May, 255 F.3 d 615, 626-27 (8th Cir. 2001) (hold- ing that Congress may enact Title VII's disparate impact standard under Section 5), and In re Employment Discrimination Litig. Against Ala., i98 F.3 d 1305, 132 1-24 (iith Cir. I999) (same), with Erickson v. Bd. of Governors, 207 F.3 d 945, 952 (7th Cir. 2ooo) (suggesting that Title V1I's disparate impact standard exceeds Congress's Section 5 authority). The issue remains officially unresolved, but Hibbs may reduce the intensity of this debate by marking a limit to the Court's contraction of Congress's Section 5 power. 5 See Deborah Malamud, Values, Symbols, and Facts in the Affirmative Action Debate, 95 MICH. L. REV 1668, 1693 (1997) (commenting on the near-universal acceptance of disparate impact theory as a valid part of antidiscrimination law). HeinOnline -- 117 Harv. L. Rev. 495 2003-2004 HARVARD LAW REVIEW [VOL. I117:493 in antidiscrimination statutes if it so chose. 6 The leading example of a disparate impact statute known to the Davis Court was, of course, Ti- tle VII of the Civil Rights Act of I964, 7 which addressed the effects of facially neutral employment criteria on different racial groups. 8 But equal protection has changed a great deal since Davis was decided, and the changes raise questions about a statute that places people in racial categories and measures liability in part by reference to the allo- cation of employment opportunities among those racial groups. As ex- emplified in decisions such as City of Richmond v. J.A. Croson Co., 9 Shaw v. Reno, 10 Adarand Constructors, Inc. v. Pena,1" and Gratz v. Bollinger,12 equal protection has become hostile to government action that aims to allocate goods among racial groups, even when intended to redress past discrimination. 13 Pre-Davis, many courts and commen- tators believed that state actions creating disparate impacts violated equal protection; 14 post-Adarand, one could well ask whether state actions prohibiting disparate impact violate equal protection.15 6 See Davis, 426 U.S. at 248. 7 Pub. L. No. 88-352, §§ 701-716, 78 Stat. 241, 253-66 (codified as amended at 42 U.S.C. §§ 2oooe to 2oooe-2 (2000)). 8 See Griggs v. Duke Power Co., 401 U.S. 424, 426-31 (1971) (interpreting section 703(a)(2) of Title VII as creating a cause of action to challenge employment criteria that have statistically disparate effects on different racial groups). 9 488 U.S. 469, 511 (1989) (plurality opinion) (striking down an affirmative action plan for municipal subcontracting). 10 509 U.S. 630, 657-58 (1993) (finding that a congressional reapportionment plan creating two majority-black districts gave rise to a claim under the Equal Protection Clause). 11 515 U.S. 200, 227 (I995) ("[Tihe Fifth and Fourteenth Amendments to the Constitution pro- tect persons, not groups."). 12 123 S. Ct. 2411, 2430-31 (2003) (invalidating the University of Michigan's undergraduate affirmative action policy). 13 An important decision that might seem to limit this trend is Grutter v. Bollinger, 123 S. Ct. 2325, 2347 (2003), which upheld the University of Michigan Law School's affirmative action policy.

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