{"id":53334,"date":"2016-09-30T11:27:00","date_gmt":"2016-09-30T16:27:00","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/supreme\/legal-commentary\/the-case-that-roared.html"},"modified":"2016-09-30T11:27:00","modified_gmt":"2016-09-30T16:27:00","slug":"the-case-that-roared","status":"publish","type":"supreme","link":"https:\/\/supreme.findlaw.com\/legal-commentary\/the-case-that-roared.html","title":{"rendered":"The Case That Roared"},"content":{"rendered":"\n
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THE CASE THAT ROARED: A Limited ” Disparate Impact ” Holding That Could Have Large Repercussions <\/h1><\/td>\n <\/tr>\n

By EDWARD LAZARUS<\/h2><\/a><\/td>\n <\/tr>\n

Tuesday, May. 01, 2001<\/td>\n\n <\/tr>\n <\/table>\n

At the Supreme Court, small decisions sometimes speak volumes. So it is with \nthe recent 5-4 ruling in Alexander \nv. Sandoval<\/i><\/a>that Title VI, a core component of the Civil Rights Act of \n1964, does not provide a private right of action for discrimination based on what \nis known as “disparate impact.” Although the holding is relatively narrow, \nit provides a broad window into the politics of law in and around the high court. \n<\/p>\n \n<\/b>

What “Disparate Impact” Means<\/p>\n \n

\tFor those unacquainted with the arcana of discrimination law, it may be \nuseful to define terms. Disparate impact is a circumstantial method of proving \ndiscrimination. Say, for example, a city adopts a regulation requiring that all \njanitors have high school diplomas. On the surface, the regulation does not discriminate. \nYet it is likely to have a “disparate impact” on minority groups with \nhigh dropout rates. <\/p>\n

In such a circumstance, plaintiffs may pursue a disparate impact theory of \nliability to shift the burden to the city, to show that a high school diploma \nis a business necessity for a janitorial job \u0097 not just a clever, facially \nneutral method for weeding out minority applicants.<\/p>\n<\/span> \n<\/b>

“Disparate Impact” Litigation: Pro and Con<\/p>\n \n

\tThe disparate impact approach to discrimination has long been a conservative \nbete noir. In the view of many conservatives, disparate impact litigation \u0097 \nwhich may be used as a weapon against almost any qualifying test <\/p>\n<\/span>\n\n \n \n
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\u0097 undermines high standards, is a crutch for underachievers, and exacts \na high cost on businesses and local governments. <\/p>\n

Conservatives also complain that the disparate impact approach encourages society \nto think of itself as a collection of separate ethnic or racial groups, not (as \nconservatives would prefer) simply as a collection of individuals. Accordingly, \nrather than focus on whether rules or policies produce disparate effects<\/i>, \nconservatives would focus exclusively on whether rules or policies reflect discriminatory \nintent<\/i>. <\/p>\n

\tThe liberal rejoinder to such arguments is straightforward. Bigotry is \nbetter hidden than it used to be and, thus, proving discriminatory intent is often \nimpossible. Disparate impact provides a useful prophylactic for rooting out intentional \ndiscrimination, and it has the important side-benefit of doing away with rules \nand policies that hold back minorities for no good reason. Any qualifying test \nthat hurts minorities, and isn\u0092t job-related, is just as well gotten rid \nof. <\/p>\na regime that will under-protect against discrimination (combating the rare modern \nexamples of obvious intentional discrimination), or a regime that will over-protect \nagainst it (opening every job test to attack, even if it makes sense to use it). \nPick your poison.\n \n<\/b>

\n\n\n \n<\/p>

\tNow, back to the last week\u0092s Supreme Court decision. When the Alexander<\/i> \nruling was announced, Justice John Paul Stevens, the author of the dissent, took \nthe rare and always meaningful step of reading portions of his opinion from the \nbench. <\/p>\n

Stevens\u0092 purpose was unmistakable: he was declaring that Alexander<\/i> \nshould be seen as another test of the Court\u0092s character \u0097 a test the \nCourt once again had failed.<\/p>\n

\tIt is not immediately apparent why Stevens considered a case with such \na relatively modest holding to be so significant. In his majority opinion, Justice \nAntonin Scalia goes to some lengths to emphasize that the Court is not<\/i> \npassing judgment on the substantive validity of the federal regulations permitting \ndisparate impact claims under Title VI. <\/p>\n

Thus, at least for now, the regulations can still be enforced by the government \n\u0097 just not by private litigants. Scalia declared that the majority\u0092s \nintent is simply to remove an avenue of legal redress that, in his view, Congress \nnever intended to exist in the first place.<\/p>\n \n<\/b>

An Ominous Question: Why Was Certiorari Granted In Alexander<\/i> At All?<\/p>\n \n

\tBeneath the surface, however, the sources of Stevens\u0092 disquiet shimmer \nominously. As an initial matter, the Court had no compelling reason to review \nthe Alexander<\/i> case. That it chose to anyway is significant. <\/p>\n

All nine federal courts of appeals that have ruled on the “private right \nof action” issue had agreed that Congress intended such a right of action \nto exist. Had they differed, that might have presented a good reason for review. \nBut they were of one mind on this issue. <\/p>\n

In the absence of any doubt among the lower courts, the decision of the conservative \njustices to reach out for the issue and make new law reflects a resurgence of \nthe aggressive conservative agenda-setting that held sway at the Court a decade \nago \u0097 when a 5-4 conservative majority re-wrote large swaths of civil rights \nlaw. <\/p>\nwith his conservative colleagues. As Scalia\u0092s opinion in Alexander<\/i>, \nwhatever its disclaimers, makes clear, a full assault on disparate impact is now \nhigh on the conservative justices\u0092 target list. \n \n<\/b>

Scalia Borrows From Brennan<\/p>\n \n

In writing Alexander,<\/i> Scalia borrowed a leaf from Justice William Brennan\u0092s \nbook of favorite tactics. Brennan was a master at “burying bones” \u0097 \nthat is, putting language into relatively narrow decisions that he could later \ndig up to support much broader rulings down the road. <\/p>\n

Scalia\u0092s opinion in Alexander<\/i> is chock full of buried bones well-suited \nto support a holding that Title VI (as well as Titles VII and IX for that matter) \ndo not allow for a disparate impact theory of liability. If only the goal of the \nbone-burying were different, Brennan might be proud. <\/p>\n

Equally troubling, from Stevens\u0092 perspective, is the methodology of Scalia\u0092s \nopinion. Although Scalia cloaks his opinion in the rhetoric of judicial restraint, \nhis approach bears the notorious trademarks of result-oriented judging. <\/p>\n

For example, inconvenient precedents are re-defined almost out of existence, \nwhile evidence pointing to a contrary result is conveniently deemed irrelevant. \nIn short, the more liberal justices see no limiting principle to how far the conservatives \nwill go (on the basis of a single vote majority) in rolling back bedrock civil \nrights law. Precedent does not limit them. Neither do the facts of the case at \nbar.<\/p>\n

\tIn Bush \nv. Gore<\/i><\/a>, the world learned that the Court\u0092s liberal minority of four \ndon\u0092t think much of the intellectual honesty of their conservative colleagues. \nIn Alexander<\/i>, Justice Stevens is reminding us that nothing changed with \nthe election and that, regardless of who is President, the stakes at the Court \nremain high indeed. <\/p>\n<\/span> \n\n

\n\n\n<\/a>\nEdward Lazarus writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books, most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.<\/u> \n\n

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