THE CASE THAT ROARED: A Limited " Disparate Impact " Holding That Could Have Large Repercussions

At the Supreme Court, small decisions sometimes speak volumes. So it is with the recent 5-4 ruling in Alexander v. Sandovalthat Title VI, a core component of the Civil Rights Act of 1964, does not provide a private right of action for discrimination based on what is known as "disparate impact." Although the holding is relatively narrow, it provides a broad window into the politics of law in and around the high court.

For those unacquainted with the arcana of discrimination law, it may be useful to define terms. Disparate impact is a circumstantial method of proving discrimination. Say, for example, a city adopts a regulation requiring that all janitors have high school diplomas. On the surface, the regulation does not discriminate. Yet it is likely to have a "disparate impact" on minority groups with high dropout rates.

In such a circumstance, plaintiffs may pursue a disparate impact theory of liability to shift the burden to the city, to show that a high school diploma is a business necessity for a janitorial job — not just a clever, facially neutral method for weeding out minority applicants.

The disparate impact approach to discrimination has long been a conservative bete noir. In the view of many conservatives, disparate impact litigation — which may be used as a weapon against almost any qualifying test

— undermines high standards, is a crutch for underachievers, and exacts a high cost on businesses and local governments.

Conservatives also complain that the disparate impact approach encourages society to think of itself as a collection of separate ethnic or racial groups, not (as conservatives would prefer) simply as a collection of individuals. Accordingly, rather than focus on whether rules or policies produce disparate effects, conservatives would focus exclusively on whether rules or policies reflect discriminatory intent.

The liberal rejoinder to such arguments is straightforward. Bigotry is better hidden than it used to be and, thus, proving discriminatory intent is often impossible. Disparate impact provides a useful prophylactic for rooting out intentional discrimination, and it has the important side-benefit of doing away with rules and policies that hold back minorities for no good reason. Any qualifying test that hurts minorities, and isn’t job-related, is just as well gotten rid of.

Now, back to the last week’s Supreme Court decision. When the Alexander ruling was announced, Justice John Paul Stevens, the author of the dissent, took the rare and always meaningful step of reading portions of his opinion from the bench.

Stevens’ purpose was unmistakable: he was declaring that Alexander should be seen as another test of the Court’s character — a test the Court once again had failed.

It is not immediately apparent why Stevens considered a case with such a relatively modest holding to be so significant. In his majority opinion, Justice Antonin Scalia goes to some lengths to emphasize that the Court is not passing judgment on the substantive validity of the federal regulations permitting disparate impact claims under Title VI.

Thus, at least for now, the regulations can still be enforced by the government — just not by private litigants. Scalia declared that the majority’s intent is simply to remove an avenue of legal redress that, in his view, Congress never intended to exist in the first place.

Beneath the surface, however, the sources of Stevens’ disquiet shimmer ominously. As an initial matter, the Court had no compelling reason to review the Alexander case. That it chose to anyway is significant.

All nine federal courts of appeals that have ruled on the "private right of action" issue had agreed that Congress intended such a right of action to exist. Had they differed, that might have presented a good reason for review. But they were of one mind on this issue.

In the absence of any doubt among the lower courts, the decision of the conservative justices to reach out for the issue and make new law reflects a resurgence of the aggressive conservative agenda-setting that held sway at the Court a decade ago — when a 5-4 conservative majority re-wrote large swaths of civil rights law.

In writing Alexander, Scalia borrowed a leaf from Justice William Brennan’s book of favorite tactics. Brennan was a master at "burying bones" — that is, putting language into relatively narrow decisions that he could later dig up to support much broader rulings down the road.

Scalia’s opinion in Alexander is chock full of buried bones well-suited to support a holding that Title VI (as well as Titles VII and IX for that matter) do not allow for a disparate impact theory of liability. If only the goal of the bone-burying were different, Brennan might be proud.

Equally troubling, from Stevens’ perspective, is the methodology of Scalia’s opinion. Although Scalia cloaks his opinion in the rhetoric of judicial restraint, his approach bears the notorious trademarks of result-oriented judging.

For example, inconvenient precedents are re-defined almost out of existence, while evidence pointing to a contrary result is conveniently deemed irrelevant. In short, the more liberal justices see no limiting principle to how far the conservatives will go (on the basis of a single vote majority) in rolling back bedrock civil rights law. Precedent does not limit them. Neither do the facts of the case at bar.

In Bush v. Gore, the world learned that the Court’s liberal minority of four don’t think much of the intellectual honesty of their conservative colleagues. In Alexander, Justice Stevens is reminding us that nothing changed with the election and that, regardless of who is President, the stakes at the Court remain high indeed.